Opinion
202938-10
08-10-2011
S.G., Plaintiff v. P.G., Defendant.
DiMascio & Associates, counsel for Plaintiff. Schlissel Ostrow Karabatos, PLLC, counsel for Defendant
DiMascio & Associates, counsel for Plaintiff.
Schlissel Ostrow Karabatos, PLLC, counsel for Defendant
Edward A. Maron, J.
Papers Submitted
Order to Show Cause, Affidavit, Affirmation, Exhibits Annexed ....................................... X
Notice of Cross-Motion, Affidavit, Exhibits Annexed ........................................................ X
Affidavit in Reply and in Opposition to Cross-Motion, Affirmation in Reply and in
Opposition to Cross-Motion, Exhibits Annexed .................................................................. X
Affidavit in Reply, Exhibits Annexed .................................................................................. X
___________________________________________________________________________
Plaintiff ("Wife") moves by Order to Show Cause dated October 20, 2010 seeking an Order 1) granting Wife exclusive use, possession and occupancy of the marital residence located at 4 Shepherds Lane, Sands Point, New York 11050; 2) ordering that the Nassau County Family Court shall continue to determine the issues of custody and visitation concerning the unemancipated children of the marriage, to wit: L.S., born March 26, 2004; and N.B., born May 23, 2005; 3) directing the Defendant ("Husband") to pay, directly from his current earnings/income, all carrying charges on the marital residence, including, but not limited to, first and second mortgage principal and interest (if any), real estate taxes, homeowner's and umbrella insurance, repairs, painting, sanitation, snow removal, exterminators, utility and fuel charges, water, replacement appliances, landscaping and tree service, pool supplies and service, alarm company fees, telephone, garbage disposal and cable television and internet service, all retroactive to the date of this application; 4) awarding Wife, pendente lite, exclusive use and possession of a 2005 Porsche automobile, and a 2008 Mercedes automobile with directions that Husband pay directly from his current earnings/income, all expenses in connection therewith, including, but not limited to, loan/lease payment, car insurance, repairs, gas, oil, maintenance, registration and license, all retroactive to the date of this application; 5) directing Husband to maintain at his own expense, directly from his current earnings/income, existing health care insurance coverage and major medical coverage for the benefit of Wife and for the parties' two infant children and pay their reasonable and necessary medical, psychiatric, psychological, dental, optometrical and prescription drug expenses, chiropractic care, and costs associated with therapy, retroactive to the date of this application; 6) directing Husband to pay to Wife, directly from his current earnings/income, the sum of $6,000.00 per week as non-taxable maintenance and child support; 7) directing Husband to pay the outstanding credit card debt of Wife; 8) directing Husband to surrender the children's passports; 9) directing Husband to pay, directly from his current earnings/income, and to maintain at his own expense, any existing life insurance policy on his life naming Wife a beneficiary thereof, so that there is at least $5,000,000.00 of life insurance on Defendant's life; 10) enjoining and restraining Husband and his agents attorneys, servants and employees or anyone else acting on his behalf, during the pendency of this action, from transferring, assigning, conveying, mortgaging, pledging, or otherwise encumbering or disposing of any of his or Wife's assets or any interest that either may have therein, including, but not limited to all trust accounts, bank accounts, stock accounts, investment accounts, real estate, or any personalty whatsoever, except for day-to-day living expenses or pursuant to further Order of this Court; 11) enjoining and retraining Husband and all persons acting under his direction, control, or in his interest from gaining access to or otherwise disposing of the contents of any safe deposit box or boxes or other storage boxes or areas in Defendant's name or in the name of any corporation or other entity in which Husband has an interest, whether as an owner, co-owner, lessee, signatory, agent, has a Power of Attorney or other access, joint tenant, custodian or trustee, or in the name of any nominee or agent of Husband until such time as there shall be an inspection and inventory of the contents of such safe deposit box or boxes or other storage boxes or areas by the attorneys for the respective parties;12) enjoining and restraining Husband, his agents, heirs, or anyone acting in concert therewith from destroying any documentary and/or electronically stored information, including, but not limited to financial statements, during the pendency of this action; 13) directing Husband to pay the attorney for Wife the sum of $50,000.00 for counsel fees, pendente lite, and reserving the right of Wife and her counsel to make further application on an interim basis in this action for additional counsel fees, experts fees, disbursements, and expenses in connection with the prosecution of this action; and 14) directing that if payment of said Court-Ordered sums are not made as directed herein, upon presentation of an affirmation of non-payment, the Clerk of the County be directed to enter judgment in that specific amount.
Husband opposes Wife's motion and moves by Notice of Cross-Motion dated March 31, 2011 seeking an Order a) directing the appointment of a psychiatrist to perform a neutral forensic custody evaluation of the parties and the children; b) directing that the parties abide by a parental access schedule consistent with the terms provided in the annexed Exhibit "A" annexed to Husband's moving papers.
Background
Branch "2" of Wife's motion is resolved pursuant to a So-Ordered Stipulation dated January 14, 2011 and "So-Ordered" by this Court on February 23, 2011.
Branch "8" of Wife's motion is resolved pursuant to the Short Form Order of this Court dated April 1, 2011.
Branch "a" of Husband's motion is resolved pursuant to the Short Form Order of this Court dated May 6, 2011, pursuant to which Paul Marcus, PhD. was appointed to conduct a neutral forensic custody evaluation of the parties and the children of the marriage.
The parties were married on July 8, 2003, and there are two children of the marriage, to wit: L.S., born March 26, 2004; and N.B., born May 23, 2005. Wife is 38 years old, reports to be in good health, holds a Master of Arts Degree in Journalism, and a Master of Science Degree in Hotel Investment, and is currently unemployed. Husband is 54 years old, reports his health to be fair, has a high school diploma, and a New York State Real Estate Broker's License. He is employed at GTI as a Real Estate Broker/Advisor. Wife resides in the marital residence with the parties' two children. Husband left the residence on or about August 30, 2010. Pursuant to the "So-Ordered" Stipulation signed by this Court on February 23, 2011, Husband agreed to pay to Wife a sum of $1,000.00 per month as and for temporary child support, "without prejudice to either parties' rights or claims in this, or any other action between them."
Wife emigrated to the United States in 2001 from Bulgaria after ten years working for a top three marketing firm to study at New York University in hopes of attaining her second masters degree. Wife met Husband in 2003 when she was still attending classes and working as a research assistant to the Dean of New York University. After the parties married, they lived in Jericho, New York with Husband's two teenage daughters from his first marriage.
Wife claims that Husband is an alcohol and drug abuser and uses said substances in the presence of the children. Wife also claims that Husband is physically, verbally, and emotionally abusive to her, in the presence of the children, as well as to the children. Wife has obtained three Orders of Protection against Husband, of which two, one from Nassau County Family Court and one from Nassau County Court, were in effect as of the date of this application. Wife contends that the Nassau County Court issued an Order of Protection to Wife and children during the arraignment of Husband for the assault on their son N. Wife claims that after the arraignment, Husband received treatment at Seafield and kept telling Wife that he loved her and wanted a change, which she claims induced her into signing a Stipulation on unsupervised visitation which Wife now contends should be modified.
Husband claims that Wife's arguments are irrelevant as all pendente lite custody and visitation issues have been resolved pursuant to a Stipulation dated January 10, 2011, providing the parenting time of the parties' children. He also argues that the issue of temporary exclusive use and occupancy of the marital residence is resolved by virtue of the District Court Order of Protection dated January 6, 2011 and the "So-Ordered" Stipulation dated January 14, 2011, whereby Wife already has de facto exclusive use and occupancy. In addition to the parenting time ordered in the January 14, 2011 "So-Ordered" Stipulation, the Order further provides that Husband shall be permitted to attend the children's school events and extracurricular activities and that he is permitted to pick the children up from school upon prior agreement. Wife further claims that Husband uses his parenting time to manipulate the children and to torment Wife. Wife alleges that on March 19, 2011, Husband came to pick up the children and that he was visibly intoxicated and smelled of alcohol. Wife claims she asked that Husband take a breathalyzer test but that he refused and forfeited his visitation for the day. Husband denies this incident, claiming that he was not intoxicated and did visit with the children that day.
Husband argues that Wife has no factual basis for opposing his request for an expanded parental access schedule nor any factual basis for asserting that Husband has returned to alcohol. Husband argues that he has successfully completed the Seafield program.
Wife claims that Husband stopped supporting the children and herself as of August 30, 2010 causing the home phone, internet, and cable service to be cut off. She further claims that the landscaper and dry cleaners will no longer service Wife or their children as they were not being compensated. Wife contends that before August 30, 2010, Husband had provided her with $26,000.00 per month in her own checking account in addition to paying the expenses of the house, automobiles, medical and related expenses directly. Husband argues that Wife's claims to the parties' finances are false and that he has suffered a significant decrease in income over the past few years, his salary decreasing from over $1 million in 2006 to $50,000.00 in 2009 and 2010.
Wife also argues that Husband has not paid his Court-Ordered maintenance payments in the last eight months. She also claims that Husband was ordered on consent to pay for all the carrying charges on the marital residence but that he has not. Wife further claims that LIPA is threatening to turn off the electricity as the account is delinquent, and the television, internet and phone service is shut off every month for a period of time. However, She submits no competent documentary proof of same. Wife also alleges that Husband has shut off the parties' alarm service for the marital residence and cancelled the parties' golf club membership, Poland Spring water delivery, air conditioning and heating services, maintenance, cleaning and landscaping services and has refused to pay the pool company. Wife argues that due to the foregoing, the family is no longer able to enjoy fun activities and that the house is in disrepair.
Wife claims that because of Husband's financial dominance over her, she was fearful at the prospect of divorcing him since he threatened to cut her off financially. Wife also claims that since the children's birth she has been their primary caretaker and has not worked outside the home because Husband becomes violent whenever she speaks about looking for employment. Husband denies Wife's allegations.
Wife contends that when she initially met Husband in 2003, he worked in the business of purchasing contaminated properties, remediating them through the Department of Environmental Conservation and selling them for a huge profit. During the marriage, Wife alleges that a company, in which Husband is a major shareholder, purchased about twenty acres of land in Maspeth, Queens. Wife also alleges that the land has now been partitioned and sold or leased to other various entities, proceeds of which payed Husband a significant amount of money. Wife contends that Husband earned well in excess of $2,000,000.00 per year for the years 2005-2007 but that Husband removed every financial document from their home before he left and that he did not share much financial information with her during the marriage. Wife states the parties only filed joint tax returns in 2004. Husband argues that he never made in excess of $2,000,000.00 and that Wife was aware of the parties' finances since she was a bookkeeper for Husband's businesses.
During the marriage, Wife claims that the couple enjoyed a lavish lifestyle, including numerous vacations for the family and their friends, a 14,000 square foot home in Sands Point, New York purchased for $3,500,000.00 in 2005 and renovated with an additional $3,000,000.00, and a 2008 Mercedes Benz and 2005 Porsche. Husband argues that the Mercedes was leased and that the lease was up in March 2011 but that Wife continues to drive the vehicle past it's lease expiration date. He also claims after the Mercedes Benz is turned in that leaves the parties with two cars, the Porsche and the Toyota Highlander which Husband drives. As Wife holds residential custody, he claims that he has offered to give Wife the Toyota in exchange for the Porsche so that she may have a suitable car to care for the children, but that Wife refuses his offer. Wife claims that Husband was supposed to lease a new Mercedes Benz for her, but as he never gave her the new vehicle, she continues to drive the expired Mercedes Benz.
Wife argues that Husband allowed her to spend freely and never questioned her expenses. For example, Wife contends Husband spent $600,000.00 to repave the road in front of their home, spent approximately $300,000.00 to cut down trees around their home, threw lavish parties for himself and his friends in which he would give away gift baskets worth thousands of dollars, spending in excess of $50,000.00 for each party and would unilaterally hire housekeepers and cooks and pay them upwards of $10,000.00 in cash. Wife also states that Husband paid for Wife's Porsche in one lump sum of $150,000.00 and paid about $200,000.00 for Husband's Bentley, also in one lump sum. However, Wife claims that as of August 2010 when Husband was arrested for beating the parties' son, his deposits into both Wife's account and their joint checking ceased and consequently so did Wife's spending. In addition, the $600.00 net per week Wife received for being an employee of the business, although she claims she never worked, will also cease. Husband denies Wife's claim that he has suddenly cut her off, claiming that Wife failed to disclose to this Court that the mortgage and taxes on the marital residence have not been paid by Husband since approximately November 2009, at which time Husband stopped receiving investment income which had sustained the parties' expenses. As the mortgage for the marital residence is secured by F.G., he began making the payments himself to preserve his credit. Husband also claims that he continues to pay Wife the court-ordered $1,000.00 per week child support payment using borrowed funds. Wife argues that while the child support was supposed to be directly deposited into her bank account, Husband pays the amount when he wants.
Wife argues that she owes approximately $42,000.00 in credit card debt and to family members who have loaned her money. She also states that she has no other funds other than the $70.00 in her bank account. Wife claims that the only way she has been able to survive is from the $600.00 she receives per week from Husband's business, and credit cards.
Wife lists her monthly expenses as totaling $25,736.00, or approximately $6,000.00 per week, and requests this amount be awarded in maintenance. Furthermore, Wife argues that Husband should pay her outstanding credit card bills in the approximate value of $13,500.00 with American Express, Chase, HSBC and Capital One. Husband argues that he is no longer able to support Wife in the way that they had previously lived because of his drastic change in income during the past few years. He claims that Wife's argument that Husband still earns large salaries from his numerous businesses is false and that as a result of the state of the real estate market, he is not able to earn nearly as much as he had.
Wife claims that during the marriage, Husband had been in charge of paying the household bills and making sure that there was enough money in Wife's checking account and in the joint checking account to pay all the children's and Wife's expenses. Wife further claims that while she has repeatedly asked Husband about their financial situation, he refused to discuss it with her or provide her with any information about the parties' finances. Husband again argues that Wife does in fact know the state of the parties' finances as she worked as a bookkeeper for the businesses during the marriage.
Husband alleges that Wife is fully aware of the parties' financial troubles as she herself mentions the fact that there is a Federal Tax lien against Husband. Husband claims that in addition to the Federal Tax lien, there are lawsuits against both parties related to incomplete renovations of the marital residence, the recent selling of three vehicles and a watch, and borrowing money by Husband in order to meet basic needs.
Husband admits to said Federal Tax lien and states that it totals $3,500,000.00. Husband argues that it was because of his decrease in salary that the mortgage and taxes on the marital residence have gone unpaid, and that he has been forced to liquidate the parties' assets in order to survive. Husband also claims he has the following liabilities: $1,700,000.00 owed to our general contractor for the renovations to the marital residence; $50,000.00 landscaping bill owed to Calabrese for the years 2005-2009; $9,000.00 contracting bill to Barrera; $7,000.00 owed to Gus Paul Pools; $11,000.00 owed to Maura Brothers for snow plowing; $24,000.00 owed to the house cleaning service; $12,000.00 owed for HVAC service; $700,000.00 owed by Husband to F. G. (a non-relative business associate) for business loans; $30,000.00 owed by Husband to F. G.; $40,000.00 owed to R.S. and; $15,000.00 to L.R. for personal loans in order to pay living expenses and legal fees including $15,000.00 fee paid to Wife's counsel.
Husband contends that while his income used to support the family, there is no reason why Wife cannot now return to work. He argues that she holds two masters degrees and that according to her resume on LinkedIn.com she has held positions as Business Development Consultant at Sagres Partners/Maspeth Realty; Business Development at The Leading Hotels of the World; Managing Director, Partner at National Media Service and; Marketing Manager, Fortuna LLC. Husband further argues that Wife lists her specialties as business development, company management, market research, feasibility studies, joint-venture development, marketing management, experience and interests in hotel development and management, travel, real estate, management of start up companies, launch of new consumer products on international markets, and full development and execution of marketing and advertising campaigns. Husband claims that in December 2010 Wife accepted a position earning her $110,000.00 a year plus benefits. Further, Husband claims that since Wife was laid off on January 24, 2011, she received several job offers since such time and that prior to that Wife was employed as the bookkeeper for the various business entities that Husband owned and that her salary was as much as $160,000.00. Wife claims that she has always been a stay at home wife and mother since the time Husband and she were married. Wife further contends that Husband forbade her from working during the marriage except for a period where he had her look after one of his company's books after the accountant quit, allegedly due to his discomfort with Husband's business and accounting practices. Wife argues that the only employment she ever had was in her home country of Bulgaria. Moreover, Wife claims that she does not have the ability to earn enough money to support herself and the children and that even if she did find work, she would not earn nearly as much as her Husband.
Husband also argues that Wife is concealing the fact that she owns a bank account in Bulgaria. Husband annexes transfer documents wherein Wife transferred $4,800.00 from her Bulgarian account to her Citibank account. Husband also produces evidence showing that Wife transferred another sum of money in the amount of $24,667.00 from her Bulgarian account to the parties' Citibank account. Husband contends that Wife has at least $200,000.00 in her Bulgarian account. Moreover, Husband contends that Wife failed to include the Bulgarian account on her Statement of Net Worth or her substantial jewelry collection. Husband claims that the insurance holds replacement coverage for jewelry in the amount of $327,000.00. Husband also claims that Wife holds in her possession hundreds of thousands of dollars in designer handbags, shoes, and clothes.
Husband contends that out of the past ten years, there were only three years in which Husband had an income of approximately $1 million and that during the other years, his income was much less. Husband's income was $48,885.00 in 2001; $95,737.00 in 2002; $121,429.00 in 2003; $1,065,027.00 in 2004; $920,000.00 in 2005; $1,120,000.00 in 2006; $575,000.00 in 2007; $275,000.00 in 2008 and; $50,000.00 in 2009. In 2010, Husband claims he earned approximately $48,000.00 in commissions. Husband argues that the only other form of income was loans and approximately $62,000.00 that he and Wife received from the sale of three motorcycles and two watches.
Husband also argues his sole source of income since October 2010 has been his gross salary of $4,085.00 per month that he receives from GTI. He attaches a copy of his most recent pay-stub to corroborate this claim. In addition, Husband argues that he has no retirement accounts, no savings accounts and no money in the parties' joint checking account. Husband also claims that the marital residence which is worth no more than approximately $4 million, has zero equity as it is encumbered by a first mortgage of $2,350,000.00 and $1,700,000.00 is owed to contractors for the incomplete renovations.
Wife annexes to her moving papers her retainer agreement from her attorneys for $5,000.00. She claims she has no assets with which to pay said retainer. In addition, Wife claims she owes to date well over $15,000.00 to her attorneys and thus requests that the Court grant her attorney interim counsel fees in the sum of $50,000.00 and be responsible for paying all legal fees during the matrimonial proceedings. She further states that, pursuant to N.Y.C.R.R. 202.16(k)(3), no third person has promised to make payment of legal fees or expert fees on Wife's behalf and Wife claims she is solely responsible for the payment of her own legal fees and expert fees herein. Wife does not state in her affidavit the retainer fee paid, any amount due and owing to her attorneys thereunder, nor does she set forth the hourly rate charged by the attorneys.
Decision and Order
Branch "1" of Wife's motion seeking an award of exclusive use and occupancy of the marital residence is GRANTED ON CONSENT of the Husband, however such award is subject to the terms and conditions set forth in the "So-Ordered" Stipulation dated January 14, 2011.
Branch "3" of Wife's motion is GRANTED TO THE EXTENT THAT Husband shall pay the following carrying charges, directly from his current earnings/income, directly to the third-party providers: homeowner's and umbrella insurance, necessary repairs, sanitation, snow removal, exterminators, utility and fuel charges, water, alarm company fees, telephone, garbage disposal and cable television, and internet service, all retroactive to the date of this application. Decision with respect to the payment of all other carrying charges on the marital residence is reserved for the trial court.
Branch "4" of Wife's motion is set for a CONFERENCE IN AID OF DISPOSITION. The Court is not aware of the current state of the parties' vehicles.
Branch "5" of Wife's motion is GRANTED. Husband has not denied that he paid these premiums during the course of the marriage or that he continues to pay same. Husband shall be responsible for the unreimbursed health and dental expenses of the parties' unemancipated children and Wife, however, such expenses do not include cosmetic or elective procedures, and the parties' shall use in-network providers only, unless otherwise agreed upon by the parties.
In actions commenced on or after October 12, 2010, applications for temporary spousal maintenance must be determined by the court by employing the statutory formula set forth in D.R.L.§236 B (5-a). The statute, however, gives courts the authority to deviate from the formula where it is determined that "the presumptive award is unjust or inappropriate." D.R.L. §236 B (5-a)(e)(1). The court may adjust the presumptive award of temporary maintenance as it finds proper, based upon its consideration of seventeen enumerated factors set forth in that section of the statute.The presumptive award of temporary spousal maintenance is calculated using the formula set forth in D.R.L. §236 (B)(5-a)(c)(1), which in the instant action is as follows:
TEMPORARY SPOUSAL MAINTENANCE GUIDELINES CALCULATION
Based upon the Court's imputation of income as set forth herein above.
I INCOME
Party Income Income over $500,000.00
Plaintiff$40,000.00 Net of FICA and Medicare Tax$0.00
Based upon her health, and education, the Court imputes income to Wife in the amount of $40,000.00, net of FICA and medicare deductions
Defendant$125,000.00 Net of FICA and Medicare Tax$0.00
Based upon Husband's earning history, the Court imputes income to him in the amount of $125,000.00 per year, net of FICA and medicare deductions.
II CALCULATIONS
Income up to $500,00.00
Basic Calculation
Guideline Amount
+-----------------------------------------------------------------------------+ ¦Basic ¦Amount ¦Formula ¦ ¦Calculation ¦ ¦ ¦ +----------------+----------+-------------------------------------------------¦ ¦Calculation A ¦$29,500.00¦30% of Payor's Income minus 20% of Payee's ¦ ¦ ¦ ¦Income. ¦ +----------------+----------+-------------------------------------------------¦ ¦Calculation B ¦$26,000.00¦40% of Combined Income minus Payee's Income. ¦ +----------------+----------+-------------------------------------------------¦ ¦$26,000.00 ¦ ¦ ¦ +-----------------------------------------------------------------------------+
Low Income Calculation (If Applicable)
Low Income Amount
+-----------------------------------------------------------------------------+ ¦Payor Income minus Guideline Amount ¦$99,000.00 ¦ +-----------------------------------------------------------+-----------------¦ ¦$0.00 ¦ ¦ +-----------------------------------------------------------------------------+Where the guideline amount would reduce the Payor's Income below the self-support reserve ($14,620.00), the award is the Payor's income minus the self support reserve. If Line 11 equals zero, there is no adjustment for low income.
III AWARD
PAYOR is the DEFENDANT Weekly Payment
+-----------------------------------------------------------------------------+ ¦Annual Amount ¦$26,000.00 ¦ +------------------------------------------------+----------------------------¦ ¦Monthly Payment ¦$2,166.67 ¦ +------------------------------------------------+----------------------------¦ ¦Bi-Weekly Payment ¦$1,000.00 ¦ +------------------------------------------------+----------------------------¦ ¦$500.00 ¦ ¦ +-----------------------------------------------------------------------------+
Income Exceeds $500,000.00: If the Payor's income exceeds $500,000.00, the court considers 19 factors set forth in D.R.L. §236 (B)(5-a)(c)(2)(a) in determining any additional award of temporary maintenance. In the case at bar there is no income that exceeds $500,000.00.
Adjustment of Award: The court may adjust the award if it finds the award is unjust or inappropriate based on its consideration of the following 17 factors set forth in D.R.L. §236(B) (5-a)(e)(1):
1.The standard of living of the parties established during the marriage;
2.The age and health of the parties;
3.The earning capacity of the parties;
4.The need of one party to incur education or training expenses;
5.The wasteful dissipation of marital property;
6.The transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
7.The existence and duration of a pre-marital joint household or a pre-divorce separate household;
8.Acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employments. Such acts include but are not limited to acts of domestic violence as provided in §459-A of the Social Services Law;
9.The availability and cost of medical insurance for the parties;
10.The care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party's earning capacity or ability to obtain meaningful employment;
11.The inability of one party to obtain meaningful employment due to age or absence from the workforce;
12.The need to pay for exceptional, additional expenses for the child or children, including, but not limited to, schooling, day care and medical treatment;
13.The tax consequence to each party;
14.Marital property subject to distribution pursuant to subdivision 5 of this part;
15The reduced or lost earning capacity of the party seeking temporary maintenance as a result of having foregone or delayed education training employment or career opportunities during the marriage;
16.The contributions and services of the party seeking temporary maintenance as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and
17.Any other factor which the court shall expressly find to be just and proper.
In light of the Husband's pendente lite obligations as more specifically set forth herein, that portion of branch "6" of Wife's motion seeking an award of temporary maintenance is GRANTED TO THE EXTENT THAT the Court directs an award of temporary maintenance in the sum of $2,000.00 per month ($24,000.00 per year), which deviates from the Guideline Amount. The first payment of temporary maintenance and arrears shall be made on August 19, 2011, and then on the first of each month thereafter. The award of spousal support is retroactive to the original date of service of this application. See D.R.L. §236, Part B(6). Retroactive sums due by reason of this award shall be paid at the rate of $100.00 per month, in addition to the sums awarded until all arrears have been satisfied. Husband shall be entitled to credits for spousal maintenance payments made as of the date of this application.
In awarding temporary child support, the court considers the guidelines contained in the Child Support Standards Act (D.R.L. §240(1-b)(c)) as well as the factors which permit a deviation from the standard calculation, as delineated in D.R.L. §240(1-b)(f), such as the financial resources of the custodial and non-custodial parents and those of the children, the physical and emotional health of the children, and the children's educational or vocational needs and aptitudes, as well as any of the non-monetary contributions that the parents will make toward the care and well-being of the children. See Formato v. Formato, 173 AD2d 274 (1st Dept. 1991).Accordingly and guided by the foregoing, that portion of branch "6" seeking an award of temporary child support is GRANTED TO THE EXTENT THAT Husband is directed to pay to the Wife a sum of $1,500.00 per month as and for child support. This temporary child support order shall supercede the "So-Ordered" Stipulation signed by this Court on February 23, 2011, as of the date the instant application.
The award of child support is retroactive to the original date of service of this application. See D.R.L. §236, Part B(7). Retroactive sums due by reason of this award shall be paid at the rate of $100.00 per month, in addition to the sums awarded until all arrears have been satisfied. The first payment of child support and arrears shall be made on August 19, 2011, and then on the first of each month thereafter. Husband may take a credit for sums voluntarily paid for actual support of the child incurred, including credits for room and board as more specifically set forth in D.R.L. §236, Part B(7), after the making of this motion and prior to the date of this decision for which he has cancelled checks or other similar proof of payment, including a written acknowledgment of the Wife. See Peltz v. Peltz, 56 AD2d 519 (1st Dept. 1977); Pascale v. Pascale, 266 AD2d 439 (2nd Dept. 1996).
Branch "7" of Wife's motion is DENIED WITHOUT PREJUDICE TO RENEW UPON PROPER PAPERS. She has failed to set forth sufficient basis in law or fact to justify granting such relief at this time.
Branch "9" of Wife's motion is GRANTED TO THE EXTENT THAT Husband is directed to comply with the Order Directing Preliminary Conference dated October 20, 2010, which orders "that neither party shall change the beneficiaries of any existing life insurance policies, and each party shall maintain the existing life insurance, automobile insurance, homeowners and renters insurance policies in full force and effect."
Branches "10" through "12" of Wife's motion are GRANTED. Husband has set forth no opposition to the relief requested and the Court finds it proper to grant such relief based upon the allegations contained in Wife's affidavit.
Branch "13" of Wife's motion is DENIED WITHOUT PREJUDICE TO RENEW UPON PROPER PAPERS. Wife has failed to comply with D.R.L. §237 by failing to set forth the required information in her affidavit.
Branch "14" of Wife's motion is GRANTED.
Decision on branch "b" of Husband's motion is reserved pending the receipt of the forensic report. The parties are directed to continue to comply with the visitation and access schedule contained in the "So-Ordered" Stipulation dated June 17, 2011.
All matters not decided or requests for relief not granted herein are hereby DENIED.
This constitutes the decision and order of this Court.
Mineola, New York
ENTER:
_______________________
Edward A. Maron, J.S.C.