S.J., Plaintiff, v. P.K., Defendant. (2026)

I. Statement Pursuant to CPLR 2219 [a]

This action was recently assigned to this Court, which now takes up the fully submitted motions and cross motions designated as Motion Sequence Nos. 2 and 3. The first concerns temporary support and interim counsel fees. The second concerns the interim parenting schedule. They are consolidated for disposition.

Upon reading and filing the following papers: Defendant's Order to Show Cause, signed July 24, 2025, together with the Affirmation of P.K. sworn to July 23, 2025, and the exhibits annexed thereto as Exhibits A through L, and the Affirmation of Defendant's counsel dated July 22, 2025; Plaintiff's Notice of Cross Motion dated August 22, 2025, together with the Affirmation of Plaintiff's counsel dated August 22, 2025, and the exhibits annexed thereto as Exhibits 1 through 13; the Affirmation of P.K. in Reply to the Order to Show Cause and in Opposition to the Cross Motion, sworn to September 5, 2025, together with the exhibits annexed thereto as Exhibits A through C; the Affirmation of Defendant's counsel in Reply and in Opposition to the Cross Motion, dated September 5, 2025; the Affirmation of Plaintiff's counsel in Reply, dated September 12, 2025, together with the exhibits annexed thereto as Exhibits 14 through 17; the Affirmation of S.J. dated September 12, 2025; the So Ordered Interim Move Out and Parenting Stipulation dated and entered June 17, 2025; and upon reading and filing the following papers on Motion Sequence No. 3: Plaintiff's Emergency Order to Show Cause, signed November 19, 2025, together with the Affirmation of S.J. sworn to November 13, 2025, and the exhibits annexed thereto as Exhibits 1 through 9, the Affirmation of Emergency of Plaintiff's counsel dated November 13, 2025, and the Attorney Affirmation in Support of Plaintiff's counsel dated November 13, 2025; Defendant's Notice of Cross Motion dated December 10, 2025, together with the Affirmation of P.K. in Opposition and in Support of the Cross Motion dated December 10, 2025, and the exhibits annexed thereto as Exhibits A through E, the Attorney Affirmation of Defendant's counsel dated December 10, 2025, and the attorney certification dated December 10, 2025; the Affirmation of S.J. in Reply and in Opposition to the Cross Motion sworn to December 17, 2025, together with the exhibits annexed thereto as Exhibits 10 through 26; the Attorney Affirmation of Plaintiff's counsel in Reply and in Opposition to the Cross Motion dated December 17, 2025; the Order Appointing Forensic Evaluator dated December 1, 2025; and upon all prior pleadings, submissions and proceedings had herein, the motions and the cross motions are decided as set forth below.

By his Order to Show Cause, Defendant P.K. seeks an order (a) directing Plaintiff to pay him $8,000 per month in pendente lite spousal support, to pay the full cost of the children's attendance at private school, and to pay the costs of childcare exceeding $2,000 per month, each from her post commencement earnings and retroactive to July 10, 2025; (b) directing Plaintiff to pay him $10,000 toward the costs he incurred in moving out of the marital residence and furnishing his new home, payable from her post commencement earnings; (c) awarding him interim counsel fees of $150,000 pursuant to Domestic Relations Law § 237, payable to Defendant's attorneys from Plaintiff's post commencement income, with leave to seek additional interim and final fees; and (d) such other relief as the Court deems just and proper. No interim relief was granted upon signature of the Order to Show Cause.

By her Cross Motion, Plaintiff S.J. seeks an order (a) awarding her $4,265 per month in pendente lite basic child support, retroactive to the date of her application; (b) allocating responsibility for child support add on expenses 68.5% to Plaintiff and 31.5% to Defendant, retroactive to the date of her application; (c) directing Defendant to comply with his disclosure obligations no later than September 30, 2025, or face sanctions pursuant to CPLR 3126; (d) summarily denying Defendant's motion based upon his asserted failure to produce documents sufficient to permit a determination under Domestic Relations Law § 236 [B] [5-a] [h] [1] and Domestic Relations Law § 237 [a], or, in the alternative, granting Defendant's motion only to the extent of directing both parties to maintain the status quo with respect to the existing medical, dental, optical and automotive insurance; and (e) such other relief as is just and proper.

By her Emergency Order to Show Cause under Motion Sequence No. 3, Plaintiff seeks an order modifying the So Ordered Interim Parenting Schedule entered June 17, 2025 to convert Defendant's alternate Wednesday midweek overnight into a dinner visit from 5:30 p.m. to 7:30 p.m. The interim relief proposed in the Order to Show Cause was struck upon signature, no modification was granted pending the return date, and oral argument was directed.

By his Cross Motion under Motion Sequence No. 3, Defendant seeks an order modifying the same stipulation to extend his alternate Sunday access from 1:00 p.m. to 5:30 p.m. and to convert his Monday dinner access into an overnight commencing at 5:30 p.m. on Monday and concluding with the children's return to school, or to Plaintiff's home, on Tuesday morning, together with such other relief as the Court deems just and proper.

II. Findings of Fact

A. The Parties, the Children and the Procedural Posture

The parties were married in April 2018. They are the parents of two children, N., born in 2019, and A., born in 2021. Defendant describes the marriage as one of nearly seven years' duration as of the making of his application.

This action was commenced in 2025. In February and March of 2025, Plaintiff moved by emergency application, designated Motion Sequence No. 1, for sole legal and physical custody of the children and for related relief. That application was resolved by a So Ordered Interim Move Out and Parenting Stipulation dated and entered June 17, 2025, annexed to Defendant's moving papers as Exhibit D and to his attorney's affirmation as Exhibit C. Pursuant to that stipulation, Plaintiff has exclusive use and occupancy of the marital residence, a three bedroom, four bathroom apartment in Manhattan, and Defendant vacated the marital residence on July 10, 2025 and thereafter occupied a one bedroom, one bathroom rental apartment. The stipulation also fixed an interim parenting schedule affording Defendant alternating weekday overnight and weekend overnight access. Plaintiff is, on this record, the primary custodial parent, a characterization Defendant does not controvert in the papers submitted on this motion.

The financial relief now sought arises from the parties' separation into two households and from a disparity in earnings that neither side seriously disputes in kind, though they dispute vigorously what legal consequence should follow from it.

B. Plaintiff's Employment, Income and Resources

Plaintiff holds a Bachelor of Science degree and a Master's degree and a Master of Business Administration, each from a private university. She previously served as a Vice President at a global bank, as a Vice President in Equity Derivatives at a second global bank, and as a Managing Director at an investment management firm. In December 2020 she co founded an investment start up firm, where she now serves as Chief Executive Officer and Chief Investment Officer. Her professional profile is annexed to Defendant's moving papers as Exhibit F.

Plaintiff's 2023 Form W-2 reflects wages of $530,403, and her 2024 Form W-2 reflects wages of $756,155.48. Exhibit G to Defendant's moving papers; Exhibit B to Defendant's moving papers. In her own submissions Plaintiff refers to 2024 compensation of $745,769 by reference to Exhibit 11 to the Cross Motion, and computes take home pay of approximately $414,262 annually, or $34,521 per month, applying an assumed effective rate of 44.45%. The two figures are not in conflict. Plaintiff's 2024 Form W-2 reports $745,769.20 at box 1 as wages, tips and other compensation, and $756,155.48 at box 5 as Medicare wages and tips. The difference of $10,386.28 is the elective deferral to her employer sponsored retirement plan reported at box 12 under code D, which is excluded from box 1 but included in box 5. For the computations that follow the Court employs $756,155.48, because the $10,386.28 voluntarily deferred to Plaintiff's retirement plan remains income for support purposes. Domestic Relations Law § 240 [1-b] [b] [5] [iii]. The same Form W-2 reports Social Security tax withheld of $10,453.20 at box 4 and Medicare tax withheld of $15,969.65 at box 6, a total of $26,422.85. Under any of these figures Plaintiff's earnings exceed Defendant's by a factor of approximately eight to nine.

Plaintiff's first sworn Statement of Net Worth, dated April 25, 2025 and annexed as Exhibit H to Defendant's moving papers, reflects total monthly expenses of $56,346. Her updated sworn Statement of Net Worth, dated August 22, 2025 and annexed as Exhibit 12 to the Cross Motion, reflects total monthly expenses of $52,196, liquid assets of approximately $26,643, credit card indebtedness of $16,819, and a loan taken against her 401 (k) retirement account to meet basic expenses. Plaintiff asserts that her equity interest in the firm, described by Defendant as a seven to eight percent stake, is a minority interest in a privately held company with a board of directors and third party investors, that there is no market for it, that she cannot borrow against it, and that no sale is anticipated.

C. Defendant's Professional Trajectory, Employment and Income

Defendant was born and raised in Greece, where he attended medical school at a Greek university. He relocated to the United States in December 2011 to pursue postgraduate clinical training. His training sequence, as set forth in his own sworn submissions, consisted of a clinical research year in structural cardiology at a New York teaching hospital, a three year residency in internal medicine, a three year general cardiology fellowship at that teaching hospital completed in 2019, a twelve month advanced echocardiography fellowship at a New York academic medical center, an interventional cardiology fellowship at a second New York academic medical center completed in 2021, and his current structural cardiology fellowship at a New Jersey teaching hospital, commenced April 1, 2024 and extended effective July 1, 2025 through December 2025.

From September 2021 through September 2023 Defendant served full time as an Assistant Professor of Medicine and Attending Physician at the New York academic medical center, and part time thereafter until April 2024, when he resigned to commence the New Jersey fellowship. His 2022 Form W-2, appearing at page 43 of the parties' joint return and annexed as Exhibit 2 to the Cross Motion, reflects earnings of $303,941. It is uncontroverted that Plaintiff earned approximately $475,000 in that same year, such that the household then drew upon both incomes in materially comparable measure.

Defendant's present gross salary as a structural cardiology fellow is $92,000 per year. He also serves as a Visiting Professor at a Greek university and as an Affiliated Researcher for a Greek research institute, from which he hopes to receive up to $34,800 in additional annual gross income, though he states under oath that such income is not guaranteed, is unlikely to be paid with regularity, and that he had received none of it as of September 2025.

Defendant's 2024 federal income tax return and the two Forms W-2 annexed thereto as Exhibit A reconcile the several figures appearing in his papers. He held two positions in 2024, resigning from the New York academic medical center in April and commencing at the New Jersey teaching hospital. The first Form W-2 reports $14,500 at box 1 and at box 5. The second Form W-2 reports $61,214.57 at box 1 and $64,606.26 at box 5, the difference of $3,391.69 being an elective deferral to a retirement plan reported at box 12 under code D. The two forms therefore aggregate $75,714.57 at box 1, which is the figure of $75,715 reported at line 1a of his return, and $79,106.26 at box 5, which is the figure of $79,106 employed by his counsel. Adding the rental income of $3,468 to the latter produces the $82,574 stated in his moving affirmation, while line 9 of the return reports total income of $82,438, being wages of $75,715, taxable interest of $4,381, ordinary dividends of $374, a capital loss of $1,500 and rental income of $3,468. Neither figure was erroneous; each was drawn from a different line.

Social Security and Medicare taxes withheld from Defendant in 2024 were $4,904.59 and $1,147.04 respectively, a total of $6,051.63. His Social Security wages of $79,106.26 fell well below the 2024 wage base, so no question of over collection between the two employers arises. Defendant reports monthly net income of $4,983.

D. Defendant's Search for Employment and Plaintiff's Application to Impute Income

Defendant states that structural cardiology is a subspecialty of interventional cardiology requiring at least eight years of clinical training after medical school, that it is among the most saturated fields in medicine, and that the fellowship he now holds is the credential required to practice independently in the subspecialty. He states that a general cardiology position would foreclose the performance of structural procedures, that a lapse of more than six months in performing such procedures would render him unmarketable for structural practice, and that the two career paths are not interchangeable.

Defendant details four lines of employment discussion pursued between February and May 2025. On March 14, 2025 he commenced discussions with a cardiologist at the New Jersey teaching hospital regarding a role dividing his time between office based general cardiology and structural procedures under a supervised arrangement; the parties met in person on April 25, 2025; and in May 2025 that cardiologist advised that funding for the structural component remained unresolved and that no written offer could issue. Concurrently, in March 2025, Defendant discussed with the Director of Structural Heart Disease at that hospital, a hybrid position divided equally between heart failure and critical care and structural intervention; in mid May 2025 the hospital's compliance department determined that Defendant would be ineligible to bill independently for heart failure management while simultaneously occupying a fellow structural post, and the position was abandoned for want of billable services. On April 30, 2025 Defendant contacted the Chief of Cardiology at that hospital, who expressed respect for Defendant's clinical skills but confirmed that the division had no capacity to create an attending position preserving a meaningful structural component. Outside that hospital system, the Chief of Cardiac Services at a second New Jersey hospital, contacted Defendant on March 6, 2025 concerning a position allocating approximately sixty percent of his clinical time to a private practice in a New Jersey suburb and forty percent to structural cardiology at that second hospital; the parties met twice in mid March 2025; the practice expected twelve hour clinical days and physical presence at that practice, more than thirty miles from the children's residence; Defendant declined; and the position was filled by another candidate. In July 2025 Defendant contacted a physician in a cardiology group affiliated with a third New Jersey hospital and learned that the group does not perform structural procedures. Defendant further states that in the preceding eighteen months he was aware of a single posted structural cardiology position in the tri state area for which he applied without receiving an interview, and that he monitors a professional society listing and three physician recruiting services for openings. He states that he is considering interventional locums work of one week per month, compensated at approximately $100,000 per year, notwithstanding the separation from the children that such work would entail.

Plaintiff asks the Court to impute annual income of $367,808 to Defendant. That figure derives from Exhibit 3 to the Cross Motion, described as a printout of open positions at the New Jersey teaching hospital, reflecting a heart failure attending position with a starting base salary of $367,808 and a further cardiologist position with a starting base salary of $355,762. Plaintiff argues in the alternative that $303,941, Defendant's actual 2022 earnings, is the minimum properly imputed.

Plaintiff relies heavily upon Defendant's own prior sworn statement. In his affidavit dated March 31, 2025, annexed as Exhibit 1 to the Cross Motion, Defendant stated at paragraph 12 that he had been offered the position of Attending Cardiologist in Structural Interventions and General Cardiology for the summer of 2025 at two hospitals in New Jersey. He stated at paragraph 7 that he had relocated to the United States in December 2011 to complete seven years of required training, at paragraph 10 that he completed his required cardiology fellowships in 2019 and that the additional advanced echocardiography fellowship would undoubtedly advance his professional career and earning capacity, at paragraph 13 that he has ninety six scientific publications, at paragraph 38 that he was a preeminent cardiologist in the years prior to February 2024, and at paragraph 42 that he received world class training at four teaching hospitals. Plaintiff also submits, as Exhibit 9, a letter from the Director of Structural Heart Disease dated March 17, 2025 expressing the hope of recruiting Defendant to that hospital's faculty after what its Director of Structural Heart Disease described as a penultimate year of training, and noting that another institution in the region was recruiting Defendant with enthusiasm.

Defendant responds that the positions identified in Exhibit 3 are generic job board listings and not offers extended to him, and that he has never received a written employment offer at the $367,808 level. He does not, in his reply, expressly reconcile his March 31, 2025 statement that he had been offered attending positions at two New Jersey hospitals with his present position that no offer ever materialized.

Plaintiff asserts in her reply affirmation that Defendant admits having turned down full time positions at two New York hospitals. The Court has reviewed the submissions and finds no such admission anywhere in the record before it, and that assertion is therefore disregarded.

Plaintiff further submits, as Exhibits 14 and 15, materials said to establish that Defendant took a two week trip to Greece during the opening weeks of the school year, a substantial portion of it spent at a beach, and that he thereby missed the children's first days of school. Defendant characterizes his Greek engagements as work obligations.

E. The Marital Standard of Living and the Parties' Respective Expenses

The marital standard of living was, by any measure, comfortable. The marital residence is a three bedroom, four bathroom Upper East Side apartment carrying monthly rent of $13,000, in a building affording a twenty four hour doorman, full time concierge, fitness center, pool and a cinema. Plaintiff's Statement of Net Worth reflects $36,000 in annual vacation expenditures, and the parties traveled to Greece with the children on at least three occasions. Plaintiff drives a Porsche Cayenne purchased for $82,000 in 2020, which Defendant contends was acquired with marital funds and earnings and which Plaintiff contends was purchased with her separate property.

The children's expenses are substantial. N. is enrolled at a private school at an annual tuition of $68,910, and A. at a second private school at an annual tuition of $31,800, which Defendant's Statement of Net Worth reflects as $8,392.50 per month and Plaintiff's as $8,500 per month. The parties employ a nanny at a cost variously stated as $5,800 per month by Defendant and $6,552 per month by Plaintiff. N. receives support services in the home and at school from a Special Education Itinerant Teacher. Plaintiff's Statement of Net Worth reflects $5,079 per month in unreimbursed medical expenses, including approximately $3,000 per month, net of reimbursement, for N.'s behavioral therapy addressed to a sensory processing disorder and a social pragmatic communication disorder, and approximately $600 per month in court ordered psychotherapy for the children. Plaintiff represents that the fixed expenses she pays to maintain the children's status quo total $35,173 per month, and that her total monthly expenses, including those attributable to the children, are $52,196.

Both parties are employed full time, and the Court finds that the cost of the parties' nanny constitutes employment related childcare reasonably incurred. Upon the two figures in the record, the Court adopts $6,552 per month, the figure appearing in Plaintiff's more recent sworn Statement of Net Worth and reflecting the cost as actually paid by her, as the reasonable monthly cost of employment related childcare for purposes of these interim applications.

It is uncontroverted, and Defendant does not deny, that Plaintiff presently pays $1,992 per month for medical and automotive insurance covering Defendant, together with $600 per month for the parking garage housing the vehicle Defendant operates, for a total of $2,592 per month, or $31,104 annually, expended directly on Defendant's behalf. Defendant pays $50 per month for the family's dental and vision coverage.

Defendant's rental apartment carries monthly rent of $4,495, and he required Plaintiff's signature as co signor because he could not qualify on his earnings alone. His updated Statement of Net Worth, dated July 7, 2025 and annexed as Exhibit J, projects total monthly expenses of $26,765.16 and anticipated monthly expenses in the new apartment of approximately $14,572. His itemization of basic monthly expenses consists of $4,495 in rent, $338 in utilities, $2,000 for food, $2,000 for childcare, $358 for clothing and dry cleaning, $110 in unreimbursed medical expenses, $1,400 for car, parking and commutation, $616 for cultural education, and $100 for toiletries and non prescription drugs, aggregating $11,417. He computes a monthly deficit of $9,589, being the difference between $14,572 and his net monthly income of $4,983.

Plaintiff correctly observes that the $26,765.16 figure includes $8,392.50 in private school tuition, $5,800 in childcare and $600 for the parking garage, none of which Defendant in fact pays, and that the removal of those three items yields actual monthly expenses of $11,973. Defendant, for his part, concedes in reply that even taking Plaintiff's argument at its most favorable, his monthly expenses exceed $11,000 against net pay of $4,983.

Defendant states that during the marriage Plaintiff required him to contribute between $8,000 and $8,400 per month toward family expenses notwithstanding the income disparity, that he did so until he could no longer, that he depleted his premarital savings in the process, and that Plaintiff controlled the family finances and kept him uninformed as to assets, liabilities and expenditures. He further submits, as Exhibit C to his reply, credit card statements which he contends reflect discretionary spending of more than $27,000 at a single retailer in one day, $13,609.43 at Hermes on May 7, 2024, and $14,181.02 at Hermes on May 15, 2024. Plaintiff responds that the items in question were purchased a year before the divorce, were resold consistent with her practice during the marriage, and that the supporting documentation was produced in disclosure as Exhibit 17.

F. The Parties' Liquid and Retirement Assets

Defendant's Statement of Net Worth, annexed as Exhibit 13 to the Cross Motion, reflects $16,753 in a checking account, $69,643 in savings accounts and nearly $19,000 in a brokerage account, aggregating in excess of $100,000 in liquid funds, together with approximately $300,000 in retirement assets and no credit card indebtedness. Defendant states in reply that he presently maintains only $6,363 in one checking account and approximately $500 in a savings account, and that a further balance of roughly $60,000 in a second savings account represents not personal savings but the proceeds of a loan of $64,101 extended to him by his father, who is retired and of limited means. In his moving papers he stated that he had approximately $16,000 in checking and $561 in savings.

Schedule E to Defendant's return reports four rental properties in Greece, producing gross rents of $12,738, against total expenses of $9,270 inclusive of depreciation of $3,950, for the net rental income of $3,468 carried to his return. His Schedule B reports taxable interest of $4,381, of which $4,363 was paid by a single bank, and ordinary dividends of $374.

Plaintiff's liquid assets, as reflected on her updated Statement of Net Worth, total approximately $26,643, against credit card debt of $16,819 and a loan taken against her 401 (k). Defendant contends that Plaintiff holds retirement accounts exceeding $1.3 million, investment and cryptocurrency accounts, the Porsche Cayenne, and the equity interest in the firm.

G. Counsel Fees Incurred

Defendant retained Defendant's attorneys on March 17, 2025 and paid an initial retainer of $50,000, funded in part from income and in part from the loan of $64,000 from his father. The retainer agreement is annexed as Exhibit K and the billing statements as Exhibit L. Between March 2025 and July 18, 2025, Defendant incurred fees in excess of $140,000. Plaintiff represents, by reference to Defendant's own Exhibit L, that the balance actually due to counsel as of July 10, 2025 was $76,824. As of September 1, 2025, Defendant had paid his attorneys $52,800 inclusive of the original retainer, and his outstanding balance was $126,181.78, as documented by the billing statements annexed as Exhibit A to his reply.

The services rendered are described as the preparation of opposition to Motion Sequence No. 1, multiple court appearances, negotiations and communications with Plaintiff's counsel, meetings with Defendant, preparation of his Statement of Net Worth and updated Statement of Net Worth, the drafting of disclosure demands and responses, review of document production, and preparation of the present application. A partner admitted in 1997, practicing exclusively in matrimonial and family law since admission, a Fellow of the American Academy of Matrimonial Lawyers since April 2018 and an adjunct professor of law since August 2024, bills at $700 per hour. A second partner, in practice for more than forty years and exclusively in matrimonial and family law for approximately twenty, bills at $700 per hour. An associate admitted in 2016 and formerly a court attorney in a Family Court, bills at $500 per hour.

Defendant affirms that he is solely responsible for his own fees and that no third person has promised to pay them on his behalf. Plaintiff represents that her own counsel fees have substantially depleted the liquid assets available to her at commencement.

H. The Disclosure Record

Plaintiff served a Notice of Discovery and Inspection, annexed as Exhibit 4, calling for responses by June 3, 2025. Defendant's formal response, annexed as Exhibit 5, indicated as to certain items that he was searching for documents. Plaintiff contends that Defendant was deficient as to twenty four of thirty nine requests, that she served a Deficiency Notice on August 11, 2025, annexed as Exhibit 6, and that Defendant did not respond. She contends further that Defendant produced nothing concerning his job search or job offers, and submits an Index of Production as Exhibit 16.

Defendant responds that he produced initial disclosure by May 19, 2025 and, by June 30, 2025, all requested tax returns, Forms W-2, bank statements, credit card statements and his curriculum vitae, that he has produced hundreds of pages of financial records, that the letters of offer sought by Plaintiff do not exist because the discussions never ripened into written offers, and that he has served Supplemental Responses and Objections to Plaintiff's First Notice for Discovery and Inspection, annexed as Exhibit B to his reply. Depositions were scheduled at the time of submission.

I. The Interim Parenting Schedule

The So Ordered Interim Move Out and Parenting Stipulation entered June 17, 2025 fixed a parenting schedule alternating over two weeks. In Week A, Defendant has parenting time on Monday and on Wednesday from 5:30 p.m. to 7:30 p.m., and from Saturday morning through Sunday at 1:00 p.m. In Week B, he has parenting time on Monday from 5:30 p.m. to 7:30 p.m., on Wednesday from 5:30 p.m. through Thursday morning, concluding with his delivery of the children to school or, if there is no school, at 9:00 a.m., and on Friday from 4:30 p.m. to 6:30 p.m. The stipulation provides that the schedule continues until the parties otherwise agree or the Court otherwise orders, and that questions of parenting time would be addressed at future appearances. The alternate Wednesday overnight in Week B is the single period at issue on Plaintiff's application. The parties have operated under this schedule since July 10, 2025.

J. Plaintiff's Account in Support of Modification

Plaintiff states that the children, aged six and four, have become acutely distressed before the Wednesday overnights, crying, screaming and clinging to her at exchanges, and that they do not react this way before the non overnight visits. She states that both children have told her they are afraid to sleep at Defendant's home.

Her principal allegation concerns the morning of October 16, 2025, following a Wednesday overnight. She states that the parties' nanny reported that Defendant became enraged when the children were being energetic, screamed loudly enough for neighbors to hear, and confined each child in turn in the bedroom as punishment; that when the nanny entered to comfort N. she found him crouched on all fours behind the door; and that Defendant then flung the door open with such force that it would have struck the child's head had the nanny not pulled him clear. Plaintiff further states that the nanny reported the children were still in the previous day's clothing, that Defendant contradicted the nanny in front of the children on the subject of Halloween, and that at the school that morning Defendant sought an unscheduled meeting, became argumentative when told an appointment was required, and could not name N.'s teacher. She states that on October 23, 2025 Defendant telephoned the nanny and confronted her about her reports to the Attorney for the Children, telling her she was destroying his life, and that the nanny is now frightened of him and will no longer coordinate exchanges.

Plaintiff further alleges that Defendant refuses to permit A. to wear a nighttime pull-up despite the pediatrician's recommendation, annexed as Exhibit 2, that he keeps the children on a pull out mattress with a blanket and no sheets, and that A. has arrived at school smelling of urine; that Defendant failed for months to install window guards and did so only in response to this motion; that the children have repeatedly been returned unfed, in the previous day's clothing and underwear, and without lunches, citing dates in July, August, September and October 2025; that Defendant is chronically late to exchanges; that on October 26, 2025 he took a febrile A. by car to a church in upper Manhattan notwithstanding his own written statements that she needed to rest, and that A. thereafter required a five day course of antibiotics; and that in the November 2025 illness episode he permitted a dispute with the pediatrician over the administration of Motrin.

Plaintiff also describes conduct she characterizes as shaming and alienating: that Defendant tore off and discarded a chewing necklace prescribed for N. by his behavioral therapist while telling him he was not a dog; that at the children's birthday party he kept them apart from thirty other children and, according to Greek speaking guests who texted her afterward, told them their mother was the devil; that he requires the children to leave gift wristwatches at his apartment and berates them when they forget, contrary to the written advice of a treating psychologist annexed as Exhibit 7; and that he has missed more than twenty five school events this semester, attended none of the forty one school search events for A., and none of the forty such events for N. in the prior year.

As to professional opinion, Plaintiff states that the family psychologist, has expressed the view that the children are too developmentally young for intraweek sleepovers in different homes and that stability is what they require; that N.'s behavioral therapist has reported escalated anxious behaviors after the overnights; that A.'s teacher has twice reported her crying at school for her mother following an overnight; and that the nanny reports both children arriving at school exhausted and dysregulated. None of these providers has submitted an affidavit or affirmation, and their views reach the Court only through Plaintiff's account of what they told her.

K. Defendant's Account in Opposition and in Support of Expanded Access

Defendant denies the substance of these allegations. He states that since July 10, 2025 there has been no accident, injury, hospitalization, call to police, child protective referral or food borne illness during his parenting time. As to the October 16 morning, he states that the children became upset when the nanny arrived, that he temporarily separated them into different rooms while remaining present and supervising, that he raised his voice briefly to regain their attention, and that there was no punishment, no locked door, no physical threat and no injury. He states that he has not dismissed the nanny but no longer relies upon her during his limited parenting time because he found her accounts incomplete and wished to be more hands on, and that he has never threatened her.

He states that he has installed window guards; that the children sleep on the pull out with proper bedding and a blanket each; that he assists them with teeth, clothing and toileting; and that he cooks for them, describing the meals he prepares. As to the pull-ups, he states that he had a reservation about reliance upon them, raised it with the pediatrician and implemented her recommendation nightly and without pause from the moment she gave it, annexing the exchange as Exhibit B. As to the church outing, he states that A. had no fever and no significant symptoms that morning, that she wished to light a candle, that they travelled by taxi both ways and remained inside roughly ten minutes, and that she developed only a low grade fever afterward requiring no visit, antibiotics or steroids. As to the November 2025 illness, he states that he first learned of N.'s cough four minutes before pickup, measured a temperature of 104 degrees, administered Tylenol, notified Plaintiff, attended the pediatric appointment jointly with her on November 21, assisted with the viral swab, and cared for N. through a difficult weekend during which the child coughed for nearly three hours on the night of November 22, adding that Plaintiff did not contact him to inquire after the child during that weekend.

Defendant states that he has sought constructive relationships with the children's schools and providers, has met with N.'s teachers and conferred with his Special Education Itinerant Teacher and with the pediatrician, and that the therapist who observes the Wednesday exchanges at her office has seen A. run into his arms without hesitation and has never raised a concern about fear or avoidance. He attributes the behavioral spikes Plaintiff describes to the transition back to what he characterizes as a less structured and more heavily scheduled household. He acknowledges that he was in Greece during the children's first week of school, states that the trip had been rescheduled from June and could not be postponed again, and states that his attempt to introduce himself to N.'s teachers upon his return was declined for want of an appointment, with which he complied without incident. He denies disparaging Plaintiff at the birthday party, and states that he invited her, her mother, and the children's friends to N.'s name day celebration on December 6, annexing the invitation as Exhibit C.

On his cross motion Defendant states that the current schedule affords him some fifteen percent of the children's time; that his Sunday parenting time ends at 1:00 p.m. and so truncates the Sunday school segment following Mass, in which he serves as one of the teachers, and the social time in the church community that follows; that he has repeatedly asked through Our Family Wizard for one additional hour on Sundays and been met with a demand for a corresponding reduction on Saturday, annexing those messages as Exhibit D; and that a Monday overnight would allow him to participate in the weekday evening and morning routines of dinner, bathing, bedtime reading, waking, dressing and school preparation. Plaintiff responds that the fifteen percent figure is misleading because the children are in school or asleep for most of each day, and that nearly all of the children's therapy, Special Education Itinerant Teacher sessions, Greek school, play therapy and medical appointments fall within her parenting time.

L. The Attorney for the Children and the Forensic Evaluator

An attorney has been appointed as the Attorney for the Children. Plaintiff states that at a conference held October 22, 2025 before the Court's law secretary he stated that he supports the conversion of the midweek overnight to a dinner visit and that it is in his clients' best interests. Defendant's counsel states that at that same conference, which was off the record and attended by attorneys only, the Attorney for the Children expressly noted that he was substituting judgment for his clients because of their ages. The Attorney for the Children has submitted no affirmation or written statement of position on these applications, and the Court has before it only the parties' competing characterizations of what he said at an unrecorded conference.

By Order dated December 1, 2025, the Court appointed a physician as custody forensic evaluator. That evaluation had not been completed when these applications were submitted.

III. Conclusions of Law

A. The Function of an Award of Temporary Relief

An award of temporary maintenance is intended to provide for the reasonable needs of the non monied spouse during the pendency of the action, striking a reasonable accommodation between the needs of that spouse and the financial ability of the other, with due regard for the pre separation standard of living. Brown v Brown, 123 AD3d 596 [1st Dept 2014]; Turret v Turret, 147 AD3d 467 [1st Dept 2017]. Such an award is not designed merely to tide the non monied spouse over, but to cover that spouse's presumptive reasonable expenses. Khaira v Khaira, 93 AD3d 194, 197, 200 [1st Dept 2012]; Galvin v Galvin, 154 AD3d 1141 [3d Dept 2017].

Equally important is what a pendente lite application is not. It is not a trial. The Second Department drew precisely this line in Prichep v Prichep, 52 AD3d 61, 65 [2d Dept 2008], distinguishing a fee award made after trial, where the court may weigh the equities and circumstances of the case including the relative merit of the parties' positions, from an interim application, as to which the Court held that no such detailed inquiry is warranted. That principle governs the application for interim counsel fees, and similar considerations of preserving the parties' ability to litigate on reasonably equal terms inform the remaining pendente lite applications. The parties have placed before the Court two irreconcilable narratives, supported on both sides by sworn affirmations and documentary excerpts, concerning Defendant's professional necessity, his diligence, his candor, and Plaintiff's discretionary spending. Those are quintessentially questions of credibility. They cannot be resolved on papers, and the Court does not purport to resolve them here. What follows is a temporary accommodation, subject to modification and to reallocation, credit and recoupment at trial, and it is not a preview of the ultimate disposition of any issue in this action.

B. Imputation of Income

A court need not accept a party's own account of his or her finances and may impute income based upon past earnings or demonstrated earning capacity. Lennox v Weberman, 109 AD3d 703, 703-704 [1st Dept 2013], citing Hickland v Hickland, 39 NY2d 1 [1976], cert denied 429 US 941 [1976]. Imputation may rest upon a party's prior employment experience and future earning potential in light of educational background, Moffre v Moffre, 29 AD3d 1149, 1150 [3d Dept 2006], and the court's discretion in this regard is broad, Matter of Genender v Genender, 51 AD3d 669, 670 [2d Dept 2008]; Irene v Irene, 41 AD3d 1179, 1180 [4th Dept 2007]. A party's lack of credibility, or the absence of documentation substantiating a claimed job search, may itself support imputation. Todres v Freifeld, 151 AD3d 569 [1st Dept 2017]; Thompson v Thompson, 186 AD3d 1180 [1st Dept 2020]; Finn v Piesco, 127 AD3d 525 [1st Dept 2015]; Jennifer O.-T. v Frederick T., 96 AD3d 561, 561-562 [1st Dept 2012]; Diliberto v Diliberto, 230 AD3d 637 [2d Dept 2024].

The Court notes that Plaintiff cites Lennox at 103 AD3d 550 and Defendant at 109 AD3d 703. The earlier decision was recalled and vacated, and the citation employed throughout this Decision and Order is to the substituted opinion reported at 109 AD3d 703.

That discretion is not unbounded. As the Second Department has instructed, a determination to impute income will be rejected where the amount imputed is not supported by the record or where the imputation is an improvident exercise of discretion. Weiss v Nelson, 196 AD3d 722, 724 [2d Dept 2021]. The inquiry is therefore not whether imputation is permissible in the abstract, but whether this record supports the particular figure urged.

It does not. The sum of $367,808 is drawn from a job board printout of openings at the New Jersey teaching hospital, one of them in heart failure. A published salary range for a vacancy is evidence that a vacancy exists; it is not evidence that the vacancy was offered to this Defendant, that he is credentialed for it, that he would be selected for it, or that he could obtain it on demand. Plaintiff's own supporting proof undercuts the inference she asks the Court to draw, for that letter of March 17, 2025 describes an intention to recruit Defendant to that hospital's faculty after the completion of his training year, not the extension of a present offer. Bradley v Bakal, 180 AD3d 443, 444 [1st Dept 2020], upon which Plaintiff principally relies, is instructive but distinguishable. The imputation there was sustained because the payee could immediately convert an existing part time position into full time work, offered no proof of any effort to seek other full time employment, supplied almost no information about the employment she did obtain, and received regular and sizeable family support. Here, by contrast, Defendant has supplied a detailed, dated and named chronology of four separate employment discussions, identifying the physicians involved, the dates of meetings, the structure of each proposed role and the specific reason each failed, together with the identity of a fifth institution contacted in July 2025 and a sixth position for which he applied without response.

Nor do the balance of Plaintiff's authorities carry the weight she places upon them at this stage. Finn v Piesco concerned a party with a law degree, a master's degree and a real estate license who reported no income whatever for an entire year. Jennifer O.-T. v Frederick T. turned upon an undocumented account of finances. Matter of Genender v Genender followed a hearing and a failure to submit compulsory financial disclosure. Alexis F. v Noelle P., 125 AD3d 428, 429 [1st Dept 2015], involved a record containing insufficient evidence to determine gross income at all. Lennox v Weberman sustained imputation of a figure appearing on the party's own most recent return. Defendant here is a Form W-2 wage earner whose salary, employer, tax returns and bank records are before the Court, and whose reported income is not seriously in doubt. He has not concealed what he earns; the dispute is over what he could earn if he chose differently, and that is a question that turns on contested professional judgment and contested credibility.

The Court does not reach this conclusion uncritically. Two issues are reserved for trial. First, Defendant swore on March 31, 2025 that he had been offered the position of Attending Cardiologist in Structural Interventions and General Cardiology for the summer of 2025 at two hospitals in New Jersey, and he swore in July and September 2025 that no offer ever issued from any institution. Those statements are not easily harmonized, and Defendant's reply papers make no attempt to harmonize them. Second, Defendant, who declined that opportunity on the ground that a commute exceeding thirty miles would compromise his availability to his children, traveled to Greece for approximately two weeks during the opening of the school year. Whether that trip was, as he says, occasioned by work obligations, or, as Plaintiff says, substantially a vacation, cannot be determined on affidavits. These are matters upon which cross examination may prove illuminating. They do not, however, supply the evidentiary foundation for the specific figure of $367,808, and a court may not impute an amount the record does not support merely because it harbors doubts about the payee's candor. Weiss v Nelson, 196 AD3d 722, 724 [2d Dept 2021].

Plaintiff's alternative request that income be imputed at $303,941, Defendant's actual 2022 earnings, presents a closer question, since it rests upon demonstrated historical earnings rather than upon a job posting. The Court declines to adopt it on this application as well. Defendant left the academic medical center position in April 2024, some ten months before this action was commenced, and the record does not permit a finding on papers that the decision was made in contemplation of or in evasion of a support obligation. The related contention, that Defendant is financing a fourteenth year of training at Plaintiff's expense for his own future benefit, is forcefully argued and may ultimately prevail, but it depends upon a determination of whether the fellowship is a professional necessity or a strategic indulgence. That determination requires testimony. Accordingly, for purposes of these interim applications only, and without prejudice to any determination at trial, the Court declines to impute income to Defendant and proceeds upon the parties' reported incomes.

C. Temporary Maintenance and the March 1, 2026 Adjustment of the Statutory Income Caps

The first step in fixing temporary spousal support is the calculation of the presumptive award under Domestic Relations Law § 236 [B] [5-a]. Khaira v Khaira, 93 AD3d 194, 200 [1st Dept 2012]. Income for this purpose is defined by reference to the Child Support Standards Act, which includes compensation voluntarily deferred and requires the deduction of Social Security and Medicare taxes actually paid. Domestic Relations Law § 236 [B] [5-a] [b] [4]; Domestic Relations Law § 240 [1-b] [b] [5] [iii], [vii] [H]. A child support calculation has been corrected on appeal where those deductions were not properly computed. Johnson v Johnson, 172 AD3d 1654 [3d Dept 2019]. The parties performed their own computations upon gross income and without that deduction, employing a payee income figure of $73,554 which the Court has been unable to reproduce from any figure in the record. The Court therefore computes the parties' respective incomes itself, from the Forms W-2 and the return.

Plaintiff's income for this purpose is $729,732.63, being Medicare wages of $756,155.48 less Social Security and Medicare taxes of $26,422.85. Defendant's income is $79,778.06, being total income of $82,438 as reported at line 9 of his return, plus the elective retirement deferral of $3,391.69 which is excluded from wages reported at box 1, less Social Security and Medicare taxes of $6,051.63.

Upon those figures, and applying the income cap of $228,000 in force when these applications were made, the first calculation yields thirty percent of $228,000, or $68,400, less twenty percent of $79,778.06, or $15,955.61, producing $52,444.39 annually. The second yields forty percent of combined income of $307,778.06, or $123,111.22, less $79,778.06, producing $43,333.16 annually. The lesser figure, $43,333.16 annually or $3,611.10 per month, is the presumptive award through February 28, 2026. Domestic Relations Law § 236 [B] [5-a] [c] [1].

That computation, however, cannot govern the whole of the period covered by this Decision and Order. The statutory income caps are adjusted biennially in accordance with the Consumer Price Index for all urban consumers. Effective March 1, 2026, the income cap of the maintenance payor was adjusted from $228,000 to $241,000, and the combined parental income cap under the Child Support Standards Act from $183,000 to $193,000. These applications were made in July and August of 2025 and are decided after that adjustment took effect. The Court is aware of no appellate authority holding that the cap in force on the date of an application remains frozen for the indefinite duration of a temporary award, and the safer and more principled course is to apply the cap in force during each period for which support accrues. That approach has been employed at nisi prius where a cap changed during a retroactive support period. M.M. v R.M., 82 Misc 3d 1254[A], 2024 NY Slip Op 50607[U] [Sup Ct, Westchester County 2024].

Applying the cap in force from March 1, 2026, the first calculation yields thirty percent of $241,000, or $72,300, less $15,955.61, producing $56,344.39 annually. The second yields forty percent of combined income of $320,778.06, or $128,311.22, less $79,778.06, producing $48,533.16 annually. The lesser figure, $48,533.16 annually or $4,044.43 per month, is the presumptive award from March 1, 2026 forward.

Each side contends that the presumptive award is unjust or inappropriate, and each urges a departure in the opposite direction. Where the court so finds, it must fix the award by reference to the factors enumerated in Domestic Relations Law § 236 [B] [5-a] [h] [1]. Turret v Turret, 147 AD3d 467 [1st Dept 2017], sustained a deviation grounded in two of those factors, the substantial difference in the parties' incomes and the marital standard of living; Anonymous v Anonymous, 142 AD3d 187 [1st Dept 2016], sustained a deviation upon consideration of the parties' circumstances as a whole. Conversely, Dewald v Dewald, 234 AD3d 520 [1st Dept 2025], sustained a substantial downward deviation from a presumptive award, and Doores v Doores, 229 AD3d 1138 [4th Dept 2024], sustained the denial of maintenance altogether. A needs based analysis is permissible where the monied spouse's income exceeds the statutory cap, and the careful examination of a payee's claimed expenses is a proper judicial function. Rennock v Rennock, 203 AD3d 675 [1st Dept 2022].

Weighing the statutory factors, the Court finds that they pull in opposite directions with nearly equal force. Several favor an upward departure. The disparity in income is stark, approximately eight to nine to one on the 2024 figures, and remains stark on any view of the record. The marital standard of living was affluent, marked by a $13,000 monthly residence in a full service building, $36,000 in annual travel, elite private schooling and full time domestic help. Defendant's reduced circumstances are real: his genuine monthly expenses, stripped of the tuition, childcare and parking he does not pay, are $11,973 against net income of $4,983, and he could not qualify for a modest one bedroom apartment without Plaintiff's signature. He has depleted premarital savings and borrowed from a retired parent.

Several factors favor a downward departure with comparable force. As to present and future earning capacity, Defendant demonstrably earned $303,941 as recently as 2022 and, by his own sworn account, completed his required cardiology training in 2019. As to the need to incur education or training expenses, Defendant has no unmet requirement; the current fellowship is, on his own characterization, a strategic investment in future earning capacity, and the whole of its benefit will accrue to him. As to the parties' respective property and resources, Defendant's own Statement of Net Worth reflects liquid funds exceeding $100,000, retirement assets approaching $300,000 and no credit card debt, while Plaintiff holds approximately $26,643 in liquid funds against $16,819 in credit card debt and has borrowed against her retirement account to meet expenses. As to the availability and cost of medical insurance, Plaintiff already funds Defendant's medical and automotive coverage and his parking. As to the care of the children, Plaintiff is the primary custodial parent and discharges nearly the entirety of the children's fixed monthly costs of $35,173, including the therapeutic services required by the parties' son. And as a factor the Court finds just and proper to consider, every dollar of maintenance transferred to Defendant is a dollar unavailable to the children in the household where they principally reside.

Having weighed these considerations, the Court concludes that they substantially offset one another and that the presumptive award, computed at the cap in force for each period, is neither unjust nor inappropriate on this record. Defendant's demand for $8,000 per month is roughly twice the guideline figure and is unsupported by any factor or combination of factors in the statute; his own itemization of basic expenses, at $11,417, would leave him with a surplus if the guideline award were doubled while Plaintiff bore the children's expenses in full. Plaintiff's request that maintenance be denied outright, or reduced to the maintenance of insurance in kind, gives insufficient weight to the magnitude of the income disparity and to the marital standard of living, and rests upon an imputation the Court has declined to make.

Defendant asks that any award be retroactive to July 10, 2025, the date he vacated the marital residence. An award of temporary support is properly made retroactive to the date of the application, not to some earlier event, and the application was made by Order to Show Cause signed July 24, 2025. The award will run from that date.

D. The Character of Plaintiff's Direct Payments to Third Parties

Plaintiff pays $1,992 per month in medical and automotive insurance premiums covering Defendant and $600 per month for the parking garage housing the vehicle he operates, a total of $2,592 per month. Where the court has ordered temporary maintenance, it may direct that payment be made directly to a third person for property and services furnished to the other spouse, or for insurance and other carrying charges. Domestic Relations Law § 236 [B] [8] [b]. That statutory authority is sufficient to support the credit directed below, and the Court does not rest it upon any decisional authority addressed to a different question.

The Court directs that Plaintiff continue those payments and receive a corresponding credit against her monthly maintenance obligation. Lest there be any doubt, the $2,592 is not a downward deviation from the presumptive award and is not to be read as one. The full guideline obligation remains due in each period. The $2,592 represents only that portion of the obligation which is satisfied by Plaintiff's direct payment to third parties of identified expenses of Defendant, rather than by payment into his hand. It follows that Plaintiff is entitled to credit only for sums actually and timely paid, and that the credit abates automatically, in whole or in the corresponding part, if and to the extent Plaintiff ceases to make any such payment, in which event the sum in question becomes payable directly to Defendant.

E. Temporary Child Support

Child support is measured by a parent's ability to provide for his or her children rather than by that parent's current economic circumstances. Alexis F. v Noelle P., 125 AD3d 428 [1st Dept 2015], citing K. v B., 13 AD3d 12, 20 [1st Dept 2004]; Zwick v Kulhan, 226 AD2d 734 [2d Dept 1996]; Collins v Collins, 241 AD2d 725, 727 [3d Dept 1997]. Plaintiff is the primary custodial parent and is entitled to an award.

Plaintiff's request for $4,265 per month rests entirely upon the imputation of $367,808 and upon the pro rata share of 31.5% that figure would generate. The premise having been rejected for the reasons stated, the conclusion cannot stand, and that branch of the Cross Motion must be denied as framed.

The parties' own submissions assert a pro rata share for Defendant of 15.58%, but neither party has shown the arithmetic by which that percentage was derived, and the Court has been unable to reproduce it. The Court therefore computes the shares itself from the incomes determined above. Because temporary maintenance is deducted from the payor's income and added to the payee's income before the parental shares are struck, and because both the maintenance award and the combined parental income cap change on March 1, 2026, the computation is performed for each period separately.

For the period from August 22, 2025, the date of the Cross Motion, through February 28, 2026, temporary maintenance of $43,333.16 annually is deducted from Plaintiff's income of $729,732.63, yielding $686,399.47, and added to Defendant's income of $79,778.06, yielding $123,111.22. Combined parental income is $809,510.69, of which Defendant's share is 15.208103% and Plaintiff's 84.791897%. Applying the then applicable cap, the basic obligation for two children is twenty five percent of $183,000, or $45,750 annually and $3,812.50 monthly, of which Defendant's pro rata share is $579.81 per month.

For the period from March 1, 2026 forward, temporary maintenance of $48,533.16 annually is deducted from Plaintiff's income, yielding $681,199.47, and added to Defendant's, yielding $128,311.22. Combined parental income remains $809,510.69, of which Defendant's share is 15.850466% and Plaintiff's 84.149534%. Applying the current cap, the basic obligation for two children is twenty five percent of $193,000, or $48,250 annually and $4,020.83 monthly, of which Defendant's pro rata share is $637.32 per month.

These computations are made upon the parties' actual Social Security and Medicare contributions as reflected at boxes 4 and 6 of their respective 2024 Forms W-2, and no further adjustment on that account is required.

Because the basic obligation has been computed upon incomes adjusted for temporary maintenance, the order must specify the child support obligation that will apply upon the termination of that maintenance. Domestic Relations Law § 240 [1-b] [b] [5] [vii] [C]. An order which deducts maintenance without providing the required post termination adjustment has been remitted for that reason. Stuart v Stuart, 155 AD3d 1373, 1375-1376 [3d Dept 2017]. Upon the termination of temporary maintenance, and without any adjustment for it, Plaintiff's income is $729,732.63 and Defendant's is $79,778.06, combined parental income is $809,510.69, Defendant's share is 9.855097% and Plaintiff's 90.144903%, his pro rata share of the monthly basic obligation of $4,020.83 is $396.26 per month, and his pro rata share of employment related childcare is $645.71 per month.

Plaintiff asks the Court to apply the guidelines to combined parental income above the statutory cap, relying upon Klauer v Abeliovich, 149 AD3d 617, 618 [1st Dept 2017], in which the First Department sustained the use of combined income of up to $800,000 where the capped award would not have met the children's needs or sustained their lifestyle. The authority is apposite in principle but the application fails at this stage for two reasons. First, in Klauer the non custodial parent, though earning far less than the custodial parent, nonetheless enjoyed a relatively high income and the means to pay more than the presumptive obligation. Second, and more fundamentally, an upward departure above the cap is unnecessary here because the Court is directing that Plaintiff continue to advance the children's fixed expenses in full, so that the children's lifestyle is preserved without interruption. The application for an upward departure is denied without prejudice to renewal at trial upon a developed record.

F. The Add On Expenses

Defendant seeks an order directing Plaintiff to pay one hundred percent of the children's private school tuition and all childcare costs exceeding $2,000 per month, while Plaintiff seeks an allocation of 68.5% to herself and 31.5% to Defendant. The 68.5 / 31.5 allocation is a function of the rejected imputation and cannot be sustained. That does not, however, end the inquiry, because the statutory add ons are not left to the parties' proposals.

Reasonable employment related childcare and unreimbursed health care expenses are mandatory add ons ordinarily allocated in proportion to the parties' respective shares of combined parental income. Employment related childcare must be prorated and separately added to basic support pursuant to Domestic Relations Law § 240 [1-b] [c] [4]. Unreimbursed health care expenses must likewise be prorated unless, upon the proof required by Domestic Relations Law § 240 [1-b] [c] [5] [vi], the Court determines that the presumptive cash medical support allocation would be unjust or inappropriate and makes the findings required by that provision. The First Department has remitted where a court failed to determine reasonable childcare expenses and to state the parties' pro rata obligations separately. Sonbuchner v Sonbuchner, 96 AD3d 566, 568-569 [1st Dept 2012].

The Court has found reasonable employment related childcare to be $6,552 per month and unreimbursed health care expenses for the children to be $5,079 per month. The presumptive allocation, applying the shares computed above, is 84.791897% to Plaintiff and 15.208103% to Defendant through February 28, 2026, and 84.149534% to Plaintiff and 15.850466% to Defendant from March 1, 2026. Defendant's pro rata share of childcare is therefore $996.43 per month in the earlier period and $1,038.52 per month in the later, and his share of unreimbursed health care is $772.42 and $805.05 per month respectively, an illustrative aggregate monthly amount of $1,768.85 rising to $1,843.57, the health care component being based upon the current monthly average of unreimbursed health care expenses appearing on Plaintiff's Statement of Net Worth and being payable in the event upon the expense actually incurred.

The Court has considered whether Defendant's constrained circumstances warrant relieving him of these obligations during the pendency of the action. His uncontroverted net monthly income is $4,983 against genuine monthly expenses of $11,973, a deficit which the temporary maintenance award narrows but does not close. The difficulty is that the statute does not leave employment related childcare to the Court's discretion and presumptively requires the same pro rata allocation for unreimbursed health care expenses, subject only to the express adjustment mechanism contained in Domestic Relations Law § 240 [1-b] [c] [5] [vi]. Childcare and unreimbursed health care are each governed by language of command: reasonable employment related childcare shall be prorated in the same proportion as each parent's income is to combined parental income and each share shall be separately stated and added to basic support, and the court shall prorate each parent's share of reasonable unreimbursed health care expenses in the same proportion and shall state the non custodial parent's share as a percentage in the order. The Court therefore prorates both, and states both, as the statute directs. The paragraph (f) factors, standing alone, authorize a departure from the presumptive basic child support obligation and do not authorize the Court to disregard the mandatory allocation of employment related childcare. Although Domestic Relations Law § 240 [1-b] [c] [5] [vi] separately permits an adjustment of cash medical support upon proof that the presumptive allocation would be unjust or inappropriate under paragraph (f), neither party has sought such relief and the Court finds no sufficient basis on this record to depart from the statutory pro rata allocation of those expenses.

The Court accordingly makes the following express determination under Domestic Relations Law § 240 [1-b] [c] [7] as to the discretionary educational add ons, namely the private school tuition and mandatory fees, tutoring, required books and materials, and the services of the Special Education Itinerant Teacher: that the provision of such education is appropriate, and that Plaintiff shall bear the whole of its cost during the pendency of this action. The children have been enrolled at their present private schools since before the commencement of the action; their continued attendance is in their best interests and, in the case of the parties' son, is bound up with the support services he receives; Plaintiff has paid the tuition throughout and has the resources to continue; Defendant does not; and preservation of the children's educational continuity during their parents' separation is itself a substantial consideration. Defendant states, and Plaintiff has not denied in any sworn statement, that she assured him on at least three occasions that she or her mother would bear the cost of the children's private schooling.

Relief from the burden the Court has described is properly afforded where the statute confers discretion rather than where it withholds it. That place is the discretionary add on for education. Domestic Relations Law § 240 [1-b] [c] [7] permits the Court, having regard for the circumstances of the case and of the respective parties and in the best interests of the children, to award educational expenses as justice requires, and the sums at stake under that heading dwarf the mandatory add ons. Private school tuition alone is $8,392.50 per month, roughly five times Defendant's combined basic and childcare obligation. By allocating that expense, together with tutoring, required books and materials, and the services of the Special Education Itinerant Teacher, entirely to Plaintiff, the Court affords Defendant an accommodation far larger than the one he would gain from any departure as to childcare or health care, and does so upon authority that is not open to question.

G. Reimbursement of Move Out and Set Up Expenses

Defendant seeks $10,000 toward the costs of vacating the marital residence and furnishing his apartment. He states that he has expended approximately $5,500, borrowed almost entirely from his father, on two inexpensive sofas, a small dining set, a coffee table, a queen size bed and basic kitchen goods purchased at deep discount retailers, and that he conservatively estimates a further $4,500 to $5,000 to outfit the children's sleeping and play space. He states that he declined Plaintiff's offer of furnishings from the marital residence so that the children's familiar belongings would remain undisturbed in their principal home, a judgment the Court regards as sensible and child centered.

Sympathetic though the request is, it fails on this record. Not a single receipt, invoice or statement substantiating any of these expenditures has been submitted. The sums claimed are estimates, half of them prospective. And Defendant's own Statement of Net Worth reflects liquid funds exceeding $100,000, a resource well suited to the modest and non recurring purchases described. An application of this character is committed to the court's discretion upon the equities and the proof, and denial is a provident exercise of that discretion where proof is wanting. Tankleff v Tankleff, 239 AD3d 685 [2d Dept 2025]. This branch of the motion is denied, without prejudice to Defendant's right to seek reimbursement, upon documentary proof, by agreement of the parties or upon the trial of this action.

H. Interim Counsel Fees

Domestic Relations Law § 237 [a] establishes a rebuttable presumption that counsel fees shall be awarded to the less monied spouse, and directs the court to seek to assure that each party is adequately represented and that fees, where awarded, be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding. The purpose of an interim award is to place the parties on an equal footing and to prevent the wealthier spouse from wearing down the other through the power of the purse. Prichep v Prichep, 52 AD3d 61, 65 [2d Dept 2008]; L.P. v C.B., 48 Misc 3d 1208[A] [Sup Ct, Kings County 2015]. Because of the importance of such awards to the fundamental fairness of the proceeding, an application by the non monied spouse should not be denied, or deferred until after trial, without good cause articulated in a written decision. Prichep v Prichep, 52 AD3d at 62.

Plaintiff is indisputably the monied spouse. Her 2024 wages exceeded Defendant's total 2024 income by roughly nine to one. The presumption applies and has not been rebutted. Plaintiff's argument that Defendant is in the superior financial position, notwithstanding her far higher income, depends upon the imputation of $367,808 that the Court has declined to make; stripped of that premise, the argument reduces to the observation that Defendant holds more liquid cash at this moment than Plaintiff does, which is a real consideration but not a rebuttal of a presumption grounded in earning power.

The presumption does not, however, entitle Defendant to the sum he demands. Counsel fee awards remain committed to the sound discretion of the court and are controlled by the equities and circumstances of the particular case, including the financial circumstances of both parties and whether either has taken positions producing delay or unnecessary litigation. Tankleff v Tankleff, 239 AD3d 685 [2d Dept 2025]; L.P. v C.B., 48 Misc 3d 1208[A] [Sup Ct, Kings County 2015]. Courts routinely temper an award where the applicant commands significant resources of his own and the responding party is heavily burdened. Steinberg v Steinberg, 194 AD3d 588, 588-589 [1st Dept 2021]; Popelaski v Popelaski, 22 AD3d 735, 738 [2d Dept 2005]. And an award of a fraction of the sum actually owed to counsel is a familiar and approved exercise of discretion. Hutchinson v Hutchinson, 219 AD3d 1320, 1323 [2d Dept 2023]; Fredericks v Fredericks, 85 AD3d 1107, 1108 [2d Dept 2011].

Several considerations counsel moderation. Defendant seeks $150,000, a sum exceeding his outstanding balance of $126,181.78 as of September 1, 2025 and far exceeding the $76,824 that Plaintiff represents, by reference to Defendant's own Exhibit L, was owing as of July 10, 2025. Defendant has already paid his counsel $52,800, has liquid funds exceeding $100,000 by his own sworn disclosure, and has received $64,000 in family assistance. Plaintiff, though far the greater earner, carries approximately $35,173 per month in fixed expenses for the children, holds approximately $26,643 in liquid funds, and has borrowed against her retirement to meet basic needs. Each party accuses the other of driving fees through obstruction and unnecessary motion practice, and on this record the Court can say only that the accusations are mutual and unresolved.

Balancing the presumption, the genuine disparity in earning power, the substantial fees already incurred and reasonably to be incurred through depositions and trial preparation, the reasonableness of the hourly rates and the experience of the attorneys described, against Defendant's own liquidity and the constraints upon Plaintiff's cash flow, the Court awards interim counsel fees in the sum of $50,000, payable directly to Defendant's attorneys, in five equal consecutive monthly installments of $10,000. The award is made without prejudice to further applications for interim fees as this action proceeds, and without prejudice to a final determination and reallocation of counsel fees upon the trial of this action. The balance of the relief demanded is denied.

I. Disclosure and the Application Pursuant to CPLR 3126

Plaintiff seeks an order directing compliance by September 30, 2025 upon pain of sanctions under CPLR 3126. That date has long since passed, and the intervening service of Defendant's Supplemental Responses and Objections has altered the posture of the dispute. The sanctions authorized by CPLR 3126, including preclusion, are drastic and are reserved for conduct shown to be willful, contumacious or in bad faith. The record before the Court does not establish that standard. Defendant produced initial disclosure in May 2025, produced tax returns, Forms W-2, bank statements, credit card statements and his curriculum vitae by June 30, 2025, and has served supplemental responses. His representation that written offers of employment do not exist is, if accurate, a complete answer to a demand for their production, and its accuracy is a matter for examination rather than for sanction on papers.

That said, Plaintiff's underlying complaint has substance. Defendant has placed his job search squarely in issue and has asked the Court to accept a detailed narrative of outreach, meetings and rejections upon his word alone. Documents reflecting that outreach, including correspondence, electronic messages, applications and calendar entries, are within his control if they exist, and they bear directly upon the questions this Court has reserved for trial. Compliance will be directed, and the failure to comply may be revisited on a proper application. Sanctions are denied at this time without prejudice.

J. The Sufficiency of Plaintiff's Answering Papers

Defendant urges that the Cross Motion should be disregarded in its entirety because it was supported solely by an attorney affirmation. He invokes 22 NYCRR 202.16 [k] [4] [i], [ii], under which a party opposing a motion is deemed to have admitted, for purposes of the motion only, such facts set forth in the movant's statement of net worth as are not controverted in a sworn statement of net worth in the prescribed form made part of the answering papers, or in other sworn statements or affidavits addressed to facts not feasible to controvert in a statement of net worth. He invokes as well Koump v Smith, 25 NY2d 287, 300 [1969], and Egan v Federated Dept. Stores, Inc., 108 AD2d 718, 719 [2d Dept 1985], for the proposition that an attorney's affirmation lacking personal knowledge is without evidentiary value.

The governing statement of the rule is that of the Court of Appeals: an affirmation of an attorney without personal knowledge of the facts is without evidentiary value, but it may nonetheless serve as the vehicle for the submission of admissible documentary evidence. Zuckerman v City of New York, 49 NY2d 557, 563 [1980].

So understood, the principle is sound but the argument fails on its own terms. The rule Defendant cites is satisfied where the opposing party annexes a sworn statement of net worth in the official form to the answering papers, and Plaintiff did precisely that: her updated Statement of Net Worth, sworn to August 22, 2025, is annexed to the Cross Motion as Exhibit 12, and it controverts Defendant's figures directly. Plaintiff thereafter submitted her own affirmation dated September 12, 2025, affirmed under penalty of perjury, adopting the factual content of her counsel's affirmation as her own and identifying herself as the source of the information. Moreover, counsel's affirmation served the classic and entirely proper function of placing documentary evidence before the Court, consisting of Defendant's own prior sworn affidavit, his curriculum vitae, the parties' returns and Forms W-2, the statements of net worth, the disclosure demands and the letter of the Director of Structural Heart Disease. An affirmation of counsel used as a vehicle for such proof is not the naked assertion condemned in Zuckerman.

The application to disregard the Cross Motion is denied. Plaintiff's corresponding application to deny Defendant's motion summarily for insufficiency of disclosure is likewise denied; the papers, though contested, permitted the Court to make the determinations set forth herein.

K. The Applications to Modify the Interim Parenting Schedule

The paramount concern in matters of custody and parental access is the best interests of the child under the totality of the circumstances. Matter of Pollack v Slasten, 237 AD3d 720, 721 [2d Dept 2025]. The determination rests in the sound discretion of the court and will not be disturbed if it has a sound and substantial basis in the record. Matter of Reid v Williams, 234 AD3d 774, 775 [2d Dept 2025]. The relevant considerations include which alternative will best promote stability, the past performance of each parent, each parent's relative fitness and ability to guide the child, provide for the child's overall well being and foster the child's relationship with the other parent, and the child's own desires. Pandis v Lapas, 176 AD3d 837, 839 [2d Dept 2019], citing McPherson v McPherson, 139 AD3d 953 [2d Dept 2016]. A temporary schedule may be modified upon a change in circumstances necessitating modification to protect the best interests of the child. Matter of Soto v Katz, 238 AD3d 1161, 1162 [2d Dept 2025], lv denied 44 NY3d 905 [2025]. At the same time, a parent may not be deprived of reasonable and meaningful access to the children of the marriage absent exceptional circumstances, and such access is not to be curtailed unless it is inimical to their welfare or the parent has in some manner forfeited the right. Strahl v Strahl, 66 AD2d 571, 574 [2d Dept 1979], affd 49 NY2d 1036 [1980].

The parties join issue on whether these applications may be determined on papers. Plaintiff is correct that a hearing is not invariably required, and that a court may modify access where it possesses adequate relevant information to make an informed and provident determination of the child's best interests. Matter of Chaim N. (Angela N.), 103 AD3d 728, 729 [2d Dept 2013]; Matter of Mercedes E.H. v Dexter R.N., 197 AD3d 1038 [1st Dept 2021]; Matter of Ciara B. (Edward T.-Alba B.), 96 AD3d 833, 834 [2d Dept 2012]; Matter of Porter v Burgey, 266 AD2d 552, 553 [2d Dept 1999]; Matter of Law v Gray, 116 AD3d 699, 700 [2d Dept 2014]. Defendant is equally correct that where the parties have tendered conflicting factual accounts in their papers and no emergency requiring immediate modification has been shown, the court should not modify the schedule without a hearing at which the movant and the attorney for the child have an opportunity to present testimony and evidence. Shoshanah B. v Lela G., 140 AD3d 603, 606-607 [1st Dept 2016]. That decision is not merely analogous. It reversed the suspension, on motion papers, of a midweek Wednesday overnight.

The two lines of authority are reconciled by asking what the papers actually contain. Where the material facts are undisputed, or where the court is already familiar with them from prior proceedings, a hearing adds nothing. Where the papers present two irreconcilable accounts of the same events, a hearing is the only means of choosing between them, because the choice depends upon an assessment of the credibility of the witnesses and of the character, temperament and sincerity of the parties. Gangi v Sanfratello, 157 AD3d 677, 678 [2d Dept 2018].

This record falls squarely on the second side of that line. Every material allegation is met with a flat and specific denial. Plaintiff describes children locked in a bedroom as punishment and a door flung open with force enough to strike a child's head; Defendant describes a brief separation of two children into different rooms under his supervision, a raised voice, and no locked door and no injury. Plaintiff describes a bare mattress and a child left in urine; Defendant describes proper bedding, an individual blanket for each child, and nightly pull-ups implemented the moment the pediatrician recommended them. Plaintiff describes children returned hungry and unwashed; Defendant describes cooked meals, morning baths and packed lunches conforming to school rules. Plaintiff describes a sick child taken out in the cold; Defendant describes a ten minute taxi trip with a child who had no fever that morning. Plaintiff describes a father absent from his children's schooling; Defendant describes meetings with teachers and the Special Education Itinerant Teacher. The Court cannot resolve any of these conflicts by reading them.

The difficulty is compounded by the character of the proof. Plaintiff's gravest allegation, the October 16 incident, is not something she witnessed. It reaches the Court as her account of what the nanny told her. The nanny has submitted nothing. Neither has the family psychologist, the treating psychologist, the pediatrician, the behavioral therapist, or any teacher, though their opinions are pressed as the evidentiary foundation of the application. Defendant's answering account is no better corroborated; his description of teachers who praise his instruction and of a therapist who has observed A. run into his arms rests upon his word alone. Documentary exhibits have been submitted on both sides, but they illuminate the parties' exchanges rather than resolve what occurred in Defendant's apartment on the mornings in question.

Nothing in the foregoing should be mistaken for a finding that Plaintiff's allegations are insubstantial. They are serious, and if established they would bear directly upon the children's safety. But the seriousness of an allegation is a reason to try it, not a reason to accept it untested. The Court declines to make findings on a paper record that would brand one parent unfit or the other a fabricator, when the means of a reliable determination is available and imminent.

Nor has an emergency been shown that would require immediate modification in advance of that determination. The interim relief proposed in the Order to Show Cause was struck upon signature and oral argument was directed, so no modification has been in effect at any time. It is uncontroverted that in the five months preceding the application there was no accident, injury, hospitalization, call to police or child protective referral arising from Defendant's parenting time. And Plaintiff's own conduct is difficult to square with a present emergency: on November 21, 2025, eight days after filing, she attended the pediatric appointment jointly with Defendant, and on the following morning she delivered both children to him for his weekend parenting time while N. was ill, without recorded reservation.

Plaintiff's authorities do not carry her past these obstacles. Matter of Rebecca KK., 51 AD3d 1086 [3d Dept 2008], was a proceeding under article 10 of the Family Court Act brought by a county department of social services, determined after fact-finding and dispositional hearings, and it bears no resemblance to a dispute between two parents over one midweek overnight. Matter of Soto v Katz and Matter of Walker v Sterkowicz-Walker, 203 AD3d 1165, 1166 [2d Dept 2022] each followed a fact-finding hearing. Matter of Blackman v Barge, 234 AD3d 752, 753 [2d Dept 2025], confirms that entitlement to a hearing is not automatic and requires a threshold evidentiary showing of changed circumstances demonstrating a need for modification. Here, unlike in Blackman, the detailed but sharply conflicting allegations concerning the children's welfare warrant a hearing but do not permit a reliable determination upon affidavits alone. Tsung v Tso, 190 AD3d 575, 577 [1st Dept 2021], followed a full evidentiary hearing at which the forensic evaluator testified. Matter of Princetta S.S. v Felix Z.J., 173 AD3d 637 [1st Dept 2019], remanded for a hearing. Matter of Evangelina C. v Maksim K., 203 AD3d 536, 538 [1st Dept 2022], rested upon a record containing the testimony of both parents, a caseworker and a court-appointed forensic evaluator, together with an in camera hearing with the child. And Matter of Chaim N. turned upon a court already fully familiar with the facts from past proceedings and upon the stated position of the attorney for the children. This Court has neither. It inherited this file recently and has held no hearing on parenting time since the Interim Stipulation was entered.

As to the position of the Attorney for the Children, the Court will not act upon it in its present form. The parties have given the Court two incompatible accounts of what the Attorney for the Children said at an off-the-record, attorneys-only conference, one reporting that he endorsed eliminating the overnight and the other that he noted he was substituting judgment because of the children's ages. Both may be accurate. Neither is a substitute for a position stated by the Attorney for the Children himself, in writing and on the record, and the decretal paragraphs direct that he provide one.

Defendant's cross motion fails for precisely the reasons he advances against Plaintiff's application, and the Court applies the principle evenhandedly. He urges, correctly, that an interim schedule ought not be disturbed upon conflicting affidavits and hearsay without a hearing, and then asks the Court to disturb that schedule upon the same affidavits in his own favor. Plaintiff's counsel puts the point accurately in observing that if the record will not support modification on Plaintiff's application, neither will it support modification on Defendant's. His requests to extend the alternate Sunday to 5:30 p.m. and to convert the Monday dinner visit into an overnight may prove well founded, and the reasons he offers, participation in weekday routines and completion of the Sunday religious and social program, are not frivolous ones. They are simply not susceptible of determination on this record and at this stage.

To the extent each party seeks immediate modification of the interim parenting schedule upon the papers presently before the Court, the applications are denied. Determination of the ultimate requests to modify the schedule is held in abeyance pending completion of the expedited forensic evaluation and the evidentiary hearing directed below. The Court does not dismiss what it has just held requires a hearing. The Court appointed a custody forensic evaluator on December 1, 2025, and that evaluation, together with an evidentiary hearing at which the parties, the collateral witnesses upon whom Plaintiff relies and the Attorney for the Children may be heard, is the appropriate vehicle for the determination both parties seek. Nothing herein precludes either party from seeking immediate relief at any time upon a properly documented emergency.

L. Interim Protective Directives

That the Court cannot resolve the parties' factual disputes on papers does not leave it without means to protect the children in the interim. In any action concerning parental access the Court may enter such orders as justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the children. Domestic Relations Law § 240 [1] [a]. Certain of these measures were requested by Plaintiff and are no longer contested in substance because Defendant represents that he has already implemented them. The remaining directives are narrowly tailored to preserve the children's safety, stability and therapeutic continuity pending the evidentiary hearing, without altering the existing allocation of parenting time and without resolving any disputed allegation. The Court has confirmed that each directive addresses a subject squarely raised in the noticed papers of one or both parties: window guards, at Plaintiff's paragraph 5 and Defendant's paragraph 6; bedding, at Plaintiff's paragraphs 4 and 16 and Defendant's paragraph 6; the recommendations of the children's providers and the use of nighttime pull-ups, at Plaintiff's paragraphs 4, 15, 16 and 18 and Defendant's paragraphs 7 and 8; the feeding of the children and the reporting of what they have eaten, at Plaintiff's paragraphs 20 through 24 and Defendant's paragraph 10; punctuality and notice of delay, at Plaintiff's paragraphs 25 through 28; the use of Our Family Wizard, which is the channel both parties already employ; the continuity of the children's therapeutic and educational services, at Plaintiff's paragraphs 8 through 11 and her reply paragraph 19; and disparagement in the children's presence, at Plaintiff's paragraph 30 and her reply paragraphs 26 and 28, and at Defendant's paragraph 26. The Court has declined to add two further restrictions it might otherwise have thought prudent, a prohibition upon questioning the children concerning the other party's household and upon permitting a third party to disparage a parent in their presence, because neither subject was raised in the noticed papers. Either party may apply for such relief at the conference directed below, as may any party who contends that a particular directive is unworkable in practice.

IV. Conclusion and Decretal Paragraphs

This is a matrimonial action between a spouse of very substantial earnings and a spouse of modest current earnings and considerable, if presently unrealized, earning capacity. Each accuses the other of bad faith. Those accusations will be tested at trial by testimony and cross examination, not resolved here on competing affidavits. The same is true of the parenting dispute, where each parent asks the Court to redraw the schedule on affidavits the other flatly contradicts. What the Court can and must do at this juncture is to keep two households afloat, keep two young children in the schools, therapies and routines they know, protect them by such interim measures as require no findings of fact, keep both parties represented by counsel of their choosing, and move this action promptly toward the forensic evaluation and hearing that alone can resolve what the papers cannot. Every provision that follows is temporary in nature, is without prejudice to the parties' respective positions, and is subject in its entirety to reallocation, credit and recoupment upon the trial of this action.

Accordingly, it is hereby

ORDERED that the branch of Defendant's Order to Show Cause seeking pendente lite spousal support is GRANTED to the extent set forth herein and is otherwise DENIED, and Plaintiff shall pay to Defendant temporary spousal maintenance in the sum of $3,611.10 per month for the period from July 24, 2025 through February 28, 2026, and in the sum of $4,044.43 per month from March 1, 2026 and continuing until further order of this Court or the entry of a judgment of divorce; and it is further

ORDERED that Defendant's request that the maintenance award be made retroactive to July 10, 2025 is DENIED; and it is further

ORDERED that the branch of Plaintiff's Cross Motion seeking pendente lite basic child support is GRANTED to the extent set forth herein and is otherwise DENIED, and Defendant shall pay to Plaintiff temporary basic child support in the sum of $579.81 per month for the period from August 22, 2025 through February 28, 2026, representing his pro rata share of 15.208103% of the monthly basic obligation of $3,812.50 for two children computed upon combined parental income to the cap of $183,000, and in the sum of $637.32 per month from March 1, 2026, representing his pro rata share of 15.850466% of the monthly basic obligation of $4,020.83 computed upon combined parental income to the cap of $193,000; and it is further

ORDERED that, pursuant to Domestic Relations Law § 240 [1-b] [b] [5] [vii] [C], upon the termination of the temporary spousal maintenance directed herein, combined parental income shall be $809,510.69, of which Plaintiff's share shall be 90.144903% and Defendant's share 9.855097%, and Defendant's basic child support obligation shall be adjusted to $396.26 per month, his pro rata share of employment related childcare to $645.71 per month, and his pro rata share of unreimbursed health care expenses to 9.855097%, for a combined monthly basic support and childcare obligation of $1,041.97, unreimbursed health care expenses remaining separately payable by percentage, effective the first day of the month next following the termination of maintenance, unless superseded by a further order of this Court or by the judgment of divorce; and it is further

ORDERED that, pursuant to Domestic Relations Law § 240 [1-b] [c] [4], the Court determines reasonable employment related childcare to be $6,552 per month, and Defendant's pro rata share thereof, separately stated and added to his basic child support obligation, is $996.43 per month from August 22, 2025 through February 28, 2026 and $1,038.52 per month from March 1, 2026, so that his combined monthly child support obligation is $1,576.24 and $1,675.84 in those periods respectively; and it is further

ORDERED that, pursuant to Domestic Relations Law § 240 [1-b] [c] [5], Defendant's pro rata share of the children's reasonable health care expenses not reimbursed or paid by insurance is 15.208103% from August 22, 2025 through February 28, 2026 and 15.850466% from March 1, 2026, payable to Plaintiff within thirty days after presentation of the invoice and proof of payment; and it is further

ORDERED that, pursuant to Domestic Relations Law § 236 [B] [8] [b], Plaintiff shall continue to pay directly the medical and automotive insurance premiums covering Defendant in the sum of $1,992 per month and the parking garage charge of $600 per month for the vehicle Defendant operates, and shall receive a credit of $2,592 per month against her monthly maintenance obligation, such that maintenance payable directly to Defendant is $1,019.10 per month through February 28, 2026 and $1,452.43 per month from March 1, 2026; and it is further

ORDERED that, for administrative convenience, the sums payable by each party may be netted into a single monthly payment, being $1,019.10 payable by Plaintiff to Defendant from July 24, 2025 through August 21, 2025, $557.14 payable by Defendant to Plaintiff from August 22, 2025 through February 28, 2026, and $223.41 payable by Defendant to Plaintiff from March 1, 2026, in each case exclusive of Defendant's pro rata share of unreimbursed health care expenses, which remains payable upon presentation; and it is further

ORDERED that the credit of $2,592 per month is not a downward deviation from the presumptive award of temporary maintenance, the full presumptive obligation remaining due in each period, but represents only that portion of the obligation satisfied by Plaintiff's direct payment to third parties of Defendant's identified insurance and parking expenses, and that Plaintiff shall be entitled to the credit only for sums actually and timely paid, the credit to abate automatically, in whole or in the corresponding part, upon any cessation or reduction of such payment, whereupon the sum in question shall become payable directly to Defendant; and it is further

ORDERED that retroactive support shall be computed separately for each of the following periods: first, July 24, 2025 through August 21, 2025, maintenance only, at $3,611.10 per month, prorated for any partial month; second, August 22, 2025 through February 28, 2026, at the net figure of $557.14 per month payable by Defendant to Plaintiff; and third, March 1, 2026 through September 30, 2026, at the net figure of $223.41 per month payable by Defendant to Plaintiff; and it is further

ORDERED that Plaintiff shall be credited, against the retroactive obligation for each such period, with the insurance and parking payments described above and with any further voluntary payments, in each case only to the extent actually made and established by documentary proof, and that any net retroactive sum remaining due after the application of such credits shall be paid in twelve equal consecutive monthly installments commencing October 1, 2026, in addition to the monthly sums directed above; and it is further

ORDERED that counsel shall confer and, within thirty days of the date of this Decision and Order, file a stipulation computing the net retroactive sum in accordance with the foregoing, and it is further

ORDERED that, for the reasons stated in the body of this Decision and Order, the Court determines, pursuant to Domestic Relations Law § 240 [1-b] [c] [7], that the provision of the children's present education is appropriate, and Plaintiff shall pay one hundred percent of the tuition and mandatory fees of the children's private schools, one hundred percent of the cost of tutoring and required books and materials, and one hundred percent of the cost of the Special Education Itinerant Teacher, in each case subject to reallocation, credit and recoupment upon the trial of this action; and it is further

ORDERED that the branch of Defendant's Order to Show Cause seeking an order directing Plaintiff to pay the full cost of the children's private school attendance is GRANTED as set forth above, and the branch seeking an order directing Plaintiff to pay the costs of childcare exceeding $2,000 per month is DENIED, employment related childcare being a mandatory add on which the statute requires to be prorated; and it is further

ORDERED that, for purposes of this Decision and Order, unreimbursed health care and therapeutic expenses mean the unreimbursed cost of medical, dental, optical, pharmaceutical, psychological, psychiatric, behavioral, occupational, speech and physical therapy services rendered to the children by a licensed provider, and educational expenses mean required books and materials, tutoring, and services rendered by a Special Education Itinerant Teacher, but shall not include the tuition and mandatory fees of the children's private schools, which are separately allocated in their entirety to Plaintiff by this Decision and Order; that neither party shall incur any single non routine expense in excess of $500 which is to be taken into account in the allocation of these expenses at trial without the prior written consent of the other party, which consent shall not be unreasonably withheld and shall be deemed granted if not refused in writing within five business days of a written request; that the foregoing consent requirement shall not apply to services presently being received by either child, to services previously agreed upon in writing, to services directed by an existing order of any court, or to emergency treatment; that in an emergency either party may obtain necessary care without prior consent and shall notify the other party within twenty four hours; and that each party shall retain, and shall furnish to the other upon written request, the invoices and proof of payment for all such expenses, so that the record for the allocation of these expenses at trial is preserved; and it is further

ORDERED that the branch of Plaintiff's Cross Motion seeking to allocate the children's add on expenses 68.5% to Plaintiff and 31.5% to Defendant is DENIED; and it is further

ORDERED that Plaintiff's application for an upward departure applying the statutory percentages to combined parental income in excess of the statutory cap is DENIED without prejudice to renewal upon the trial of this action; and it is further

ORDERED that Plaintiff's request that income in the sum of $367,808, or in the alternative $303,941, be imputed to Defendant is DENIED for purposes of these interim applications only, without prejudice to any determination as to imputation upon the trial of this action; and it is further

ORDERED that the branch of Defendant's Order to Show Cause seeking $10,000 in reimbursement of move out and apartment set up expenses is DENIED, without prejudice to Defendant's right to seek such reimbursement upon documentary proof, by written agreement of the parties, or upon the trial of this action; and it is further

ORDERED that the branch of Defendant's Order to Show Cause seeking interim counsel fees pursuant to Domestic Relations Law § 237 is GRANTED to the extent of awarding the sum of $50,000, and is otherwise DENIED; and it is further

ORDERED that Plaintiff shall pay the sum of $50,000 directly to Defendant's attorneys, in five equal consecutive monthly installments of $10,000 each, the first such installment payable within thirty days of the date of this Decision and Order and each subsequent installment payable on the same day of each month thereafter, without prejudice to further applications for interim counsel fees as this action proceeds and without prejudice to a final award and reallocation of counsel fees upon the trial of this action; and it is further

ORDERED that the branch of Plaintiff's Cross Motion seeking to compel disclosure is GRANTED to the extent that Defendant shall, within thirty days of the date of this Decision and Order, serve a further supplemental response to Plaintiff's Notice of Discovery and Inspection curing each outstanding deficiency identified in Plaintiff's Deficiency Notice dated August 11, 2025, and shall produce all documents within his possession, custody or control reflecting his search for employment from January 1, 2024 forward, including correspondence, electronic messages, text messages, applications, recruiter communications and calendar entries, or shall serve a sworn statement identifying with particularity each category as to which no responsive document exists; and it is further

ORDERED that the branch of Plaintiff's Cross Motion seeking sanctions pursuant to CPLR 3126 is DENIED without prejudice to renewal upon a showing of non compliance with the preceding paragraph; and it is further

ORDERED that the branch of Plaintiff's Cross Motion seeking the summary denial of Defendant's Order to Show Cause for insufficiency of disclosure is DENIED; and it is further

ORDERED that Defendant's application to disregard Plaintiff's Cross Motion pursuant to 22 NYCRR 202.16 [k] [4] is DENIED; and it is further

ORDERED that both parties shall maintain in full force and effect the medical, dental, optical and automotive insurance coverage in effect as of the commencement of this action, and neither party shall cancel, reduce, permit to lapse, or change the beneficiaries of any such coverage without the prior written consent of the other party or further order of this Court; and it is further

ORDERED that Plaintiff's application under Motion Sequence No. 3 for immediate modification of the interim parenting schedule upon the papers presently submitted is DENIED, and determination of her underlying request to convert Defendant's alternate Wednesday midweek overnight into a dinner visit is HELD IN ABEYANCE pending completion of the forensic evaluation and the evidentiary hearing directed herein; and it is further

ORDERED that Defendant's application under Motion Sequence No. 3 for immediate modification of the interim parenting schedule upon the papers presently submitted is DENIED, and determination of his underlying requests to extend his alternate Sunday access to 5:30 p.m. and to convert his Monday dinner access into an overnight is HELD IN ABEYANCE pending completion of the forensic evaluation and the evidentiary hearing directed herein; and it is further

ORDERED that the So Ordered Interim Move Out and Parenting Stipulation entered June 17, 2025 shall remain in full force and effect until the parties otherwise agree in writing or this Court otherwise orders; and it is further

ORDERED that the parties shall cooperate fully and promptly with the custody forensic evaluator appointed by Order dated December 1, 2025, that the evaluation shall proceed on an expedited basis, and that the report shall be furnished to the Court, to counsel for each party and to the Attorney for the Children in accordance with the order of appointment; and it is further

ORDERED that the Attorney for the Children shall file and serve a written statement of his position with respect to the interim parenting schedule within thirty days of the date of this Decision and Order, consistent with 22 NYCRR 7.2 and without disclosure of privileged attorney-client communications, and shall appear at the conference directed below; and it is further

ORDERED that an evidentiary hearing on the interim parenting schedule shall be scheduled at the conference directed below, at which the parties, the collateral witnesses upon whom either party relies and the Attorney for the Children may be heard, and either party may seek immediate relief at any time upon a properly documented emergency; and it is further

ORDERED that, pending further order and without any finding on the merits of any allegation made by either party, each party shall (i) maintain window guards in compliance with applicable law in every room of the residence accessible to the children; (ii) provide the children with a fitted sheet and a waterproof mattress protector upon any surface on which they sleep; (iii) follow the existing written recommendations of the children's pediatrician and treating providers that were submitted on these motions, including the recommendation concerning nighttime pull-ups, provided that any materially different or additional recommendation shall be implemented only upon written agreement of the parties or further order of this Court; (iv) provide the children with an appropriate meal during any parenting period spanning a customary mealtime and record through Our Family Wizard what the children were offered and what they ate; (v) adhere strictly to the exchange times fixed by the Interim Stipulation and give notice through Our Family Wizard of any unavoidable delay as soon as it is known and in no event later than thirty minutes before the scheduled time; (vi) conduct all communications concerning the children through Our Family Wizard; (vii) continue the children in their existing therapeutic, behavioral and educational services and neither discontinue, suspend nor substitute any such service without the written agreement of the other party or further order of this Court; and (viii) refrain from disparaging the other party in the presence or hearing of the children and from discussing this litigation with the children; and it is further

ORDERED that all relief directed herein is temporary in nature, is granted without prejudice to the parties' respective contentions, and is subject in its entirety to reallocation, credit and recoupment upon the trial of this action; and it is further

ORDERED that, except for the applications expressly held in abeyance herein, all relief requested and not expressly granted is DENIED; and it is further

ORDERED that the parties, counsel and the Attorney for the Children shall appear for a conference on a date to be fixed by the Court, at which the Court will set a schedule for the completion of disclosure, for the completion of the forensic evaluation, for the evidentiary hearing on parenting time and for the filing of the note of issue; and it is further

ORDERED that Defendant shall serve a copy of this Decision and Order, with notice of entry, upon Plaintiff by electronic filing and by electronic mail upon her attorneys, within ten days of the date of entry.

This constitutes the Decision and Order of the Court.

Notice Pursuant to Domestic Relations Law § 236 [B] [7] [d]

The parties are hereby advised that (i) either party has the right to seek a modification of the child support order upon a showing of a substantial change in circumstances; (ii) either party has the right to seek a modification of the child support order upon a showing that three years have passed since the order was entered, last modified or adjusted; and (iii) either party has the right to seek a modification of the child support order upon a showing that there has been a change in either party's gross income by fifteen percent or more since the order was entered, last modified or adjusted, provided that any such reduction in income was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability and experience.

Dated: September 4, 2026

New York, New York

ENTER:

Hon. Ronald Castorina, Jr., J.S.C.

Ronald Castorina, Jr., J.