Opinion
No. XXXX/14.
03-10-2015
BT, Plaintiff, v. LT, Defendant.
Snitow Kanfer & Holtzer, LLP, for Plaintiff. Caruso, Caruso & Branda, P.C., for Defendant.
Snitow Kanfer & Holtzer, LLP, for Plaintiff.
Caruso, Caruso & Branda, P.C., for Defendant.
Opinion
CARL J. LANDICINO, J.
The following papers numbered 1 to 8 read herein:
| Papers | Numbered |
|---|---|
| Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed | 1–4 |
| Opposing Affidavits (Affirmations) | 5–6 |
| Reply Affidavits (Affirmations) | 7 Affidavit (Affirmation) |
| Other Papers Transcript dated November 17, 2014 | 8 |
Upon the foregoing papers, plaintiff BT moves for an order: (1) awarding her unallocated pendente lite support in the amount of $45,687 per month, based upon her marital lifestyle and pursuant to Domestic Relations Law (DRL) §§ 236 and 240, retroactive to the date of this application; (2) directing defendant to pay all of the carrying charges and utilities on the parties' former marital residence, located in Brooklyn, and on their vacation home, located in New York; (3) directing defendant to pay 100% of their unemancipated son's private school yeshiva education and school-related expenses, including but not limited to tutoring and school events (i.e., dinners and donations), retroactive to the date of this application; (4) directing defendant to maintain medical insurance for her and their son and to pay for all of their unreimbursed medical and dental expenses, retroactive to the date of this application; (5) directing defendant to continue to pay for plaintiff's domestic housekeeper at the rate of $2,033 per month; (6) directing defendant to make all support payments from non-marital funds and only with income and/or earnings received post-commencement; (7) granting her exclusive use and occupancy of the former marital residence; (8) granting her exclusive use and occupancy of the vacation home; (9) directing defendant to maintain in full force and effect a life insurance policy on his life for her and their son's benefit; (10) directing defendant to pay her attorneys $75,000 as and for prospective counsel fees, without prejudice and with the right to seek additional fees as necessary; and (11) directing defendant to pay $100,000 as and for prospective expert fees, without prejudice and with the right to seek additional fees as necessary.
The publication version of this Decision and Order was edited for privacy.
Facts
The parties were married in 1975, in Brooklyn, when plaintiff was 19 years old and defendant was 23. They have six children, five of whom are over 21 and emancipated. The youngest child, a son, is 18 years old (the son) and lives full time, year-round, at Yeshiva. They have 17 grandchildren. The parties physically separated in March 2013, when defendant moved out of the former marital residence. Plaintiff commenced the instant action on January 9, 2014.
Procedural Background
Defendant represents that he is not opposing those portions of plaintiff's motion: (1) directing him to pay for all of the carrying charges and utilities on the former marital residence to the same extent that he has paid during the marriage, to wit: monthly rent in the amount of $2,500 per month , water charges, sewer charges and homeowners' insurance, which amounts to approximately $3,800 per month; (2) directing him to pay all of the carrying charges and utilities on the vacation home; (3) directing him to pay 100% of the son's private school yeshiva education and school-related expenses at a cost of approximately $17,800 annually, or $1,483 per month; (4) directing him to pay for medical insurance for plaintiff and the son and paying for 100% of the son's unreimbursed medial and dental expenses; (5) granting plaintiff exclusive use and occupancy of the former marital residence; and (6) directing him to maintain in full force and effect the life insurance policy on his life for the benefit of plaintiff and the son that is presently in effect.
Defendant alleges the former marital residence is owned by D Corp., a corporation affiliated with his employer, and that D Corp. has made all mortgage payments on the property since 1988, although the deed indicates that the property is held in the parties' names. Further, the $2,500 per month that defendant claims the parties pay as rent has been paid to RM, defendant's employer, as agent for D Corp.
Plaintiff's Request for Pendente Lite Maintenance
Plaintiff's Contentions
Plaintiff explains that at the time that the parties married, she earned approximately $200 per week working at a Medical Center and approximately $100 per week tutoring and teaching art classes, while defendant continued his studies at yeshiva and then in accounting. Plaintiff states that Defendant thereafter began to work for his father's accounting firm. After the birth of their second child in 1982, plaintiff alleges that she and her husband agreed that she would be a “stay-at-home-mom” and raise the children. Because of her interest in design, she continued to work in the industry from time to time, not because the parties needed the income, but because she wanted a creative outlet. Plaintiff alleges that while working for his father, defendant became interested in real estate and formed S Enterprises with a colleague. Defendant apparently eventually left that business and opened RM, Inc. (RM). She asserts that defendant controlled all of their finances throughout the marriage.
Plaintiff further alleges that in 1987, the parties' acquired the former marital residence for $600,000 and spent an additional $600,000 furnishing and renovating the premises, while at the same time purchasing a vacation home in New York for $50,000. In 1993, that property was sold for $95,000 and replaced with another home. The new home cost $150,000, which was furnished and renovated for an additional $40,000; that home was sold in 2012 for $625,000. In 2000, the parties acquired a second vacation home in New York for $350,000 and spent $150,000 renovating and furnishing it. Plaintiff states that all three homes were fully furnished for both the adults and the grandchildren in the family.
Plaintiff also contends that as his business grew, defendant acquired more properties with other investors and now operates as a successful real estate manager, consultant and investor, which allowed him to accumulate “substantial wealth and millions of dollars in revenue”. Plaintiff thus claims that during their marriage, the parties amassed $4,000,000 in various bank accounts, to which she had unlimited access. She also claims that at defendant's insistence, most of the parties' pre-separation expenses were paid in cash that was kept in grocery bags or containers stored in various places in their home, with some bags containing over $100,000. Plaintiff also states that when she last checked their safe deposit box in 2012, it held $400,000 in cash. Plaintiff further asserts that during the marriage, the parties lived in opulence, maintaining beautiful homes; sending their children to the best schools and camps; hiring tutors for the children; paying many expenses for their married children and their grandchildren, including purchasing homes for the children and paying for housekeepers, baby nurses, vacations, expensive gifts and other expenses; travelling extensively, both in this country and abroad, staying in exclusive hotels; eating in expensive restaurants; driving expensive cars; and buying clothing, jewelry, antiques and other items in high end stores.
Plaintiff further alleges that the parties often hosted meals for approximately 25 family members on a weekly basis and hosted religious holidays that were celebrated for up to eight days with up to 50 guests. She claims that she accordingly spent approximately $10,000 per year for food for celebrations, plus several thousand dollars per month for food purchased from expensive specialty stores. She further notes that chefs and housekeepers were hired to handle the events. The parties also hired a housekeeper in 1982 who was paid $25,000 per year, plus $6,000 for the holidays. The house was painted every nine years at a cost of $30,000. Plaintiff also claims that the parties pay a handyman $5,000 to maintain the summer home and that the original landscaping cost was $5,000 and the cost is currently $1,000 per season to maintain. During the course of the marriage a nurse was hired for each of the six children, according to the plaintiff, at a cost of $5,000. Plaintiff does not know if the houses that the parties own have mortgages or what the utilities cost, since the bills are allegedly sent to defendant at his office. Plaintiff also states that she pays approximately $10,000 per year for her Sheitals (wigs worn by religious Jewish women). In addition, she claims to have spent approximately $10,000 a year at spas and salons for massages, manicures, pedicures, etc.
Turning to defendant's lifestyle, plaintiff claims that he has been an avid golfer and tennis player, spending large sums of money every year on these activities. She claims that he also enjoys purchasing expensive electronic equipment such as, for example, computers, laptops and printers. In addition, he enjoys editing manuscripts and having them printed in Israel, one costing him $50,000. Plaintiff states that Defendant also enjoys collecting antiques. Plaintiff further alleges that the parties donated approximately $200,000 per year to charities and that defendant has made numerous loans to friends and family. Plaintiff also asserts that defendant maintains more than ten life insurance policies, with a cash surrender value of approximately $1,500,000 and death benefits of almost $13,500,000, which have total monthly premiums of approximately $8,500.
Plaintiff further asserts that her monthly expenses total $69,119 per month. She notes, however, that she has been forced to curtail her expenses because defendant is not providing her with sufficient funds since he left the former marital residence in March of 2013 and she does not have cash to pay the expenses. Plaintiff thus concludes that defendant should be ordered to pay maintenance to her in an amount that will allow her to live in the same lifestyle as she did during the 39 years that the parties were married and residing together. She goes on to assert that defendant's income tax returns indicate that he earns a very significant income:
| 2007 | $798,645 |
| 2008 | 461,368 |
| 2009 | 689,434 |
| 2010 | 770,347 |
| 2011 | 580,894 |
Plaintiff also notes that a review of the interest income reported on those returns indicate that the parties had between $2,500,000 to $5,000,000 in savings, depending upon the rate of return; she lists bank accounts that have a total of over $3,000,000 in deposits in further support of this assertion. In addition, plaintiff alleges that the analysis performed to date by her forensic evaluator, Dr. L, indicates that defendant received income of at least $4,614,255 in 2012 and 2013. Plaintiff also estimates that defendant's real estate holdings are valued at approximately $15,000,000 and are held in his name and in the trusts that he has created.
Defendant's Contentions
In opposition to plaintiff's motion, defendant argues that plaintiff's request for almost $70,000 per month in temporary maintenance is both unnecessary and frivolous, since he contends that he continues to pay for all of her expenses. He further asserts that he has not reduced his support of plaintiff. Defendant contends that after retaining her attorney plaintiff has increased her discretionary spending three fold. In this regard, defendant notes that plaintiff fails to provide any documentation that her expenses equal the amount of maintenance that she seeks.
By way of background, defendant alleges that he built his career through the management of commercial and residential properties in New York. He is also a partner holding various interests in several real estate holding companies and the Chief Executive Officer of RM, whereby he manages real estate owned exclusively by the FG and affiliates in New York, Florida and Pennsylvania. Defendant, however, alleges that he has never had an ownership interest in RM. Defendant maintains that his annual salary from FG is $230,000 per year. He also manages other properties.
Defendant further argues that despite plaintiff's assertions to the contrary, he has continued to deposit all of his income into the parties' joint accounts since the parties separated, except for $250,000 in proceeds from the refinancing of a building located on the Grand Concourse in Bronx County. Those funds, according to the defendant, were segregated for renovation, if necessary. More specifically, defendant contends that he deposited $580,081 in 2013 and $438,259 in the first seven months of 2014. He alleges that plaintiff also has had access to $5,000,000 on deposit in their joint bank and brokerage accounts. Further, over the past 17 months, plaintiff has expended $158,365 through her Mastercard, withdrawn $92,039 from their bank accounts and paid miscellaneous expenses in the amount of $36,000 through her debit card and by personal checks in order to maintain what she claims was her pre-separation style of living. Defendant also emphasizes that these amounts do not include the expenses that he voluntarily pays, i.e., the expenses incurred in carrying the former marital residence and the vacation home and medical, life and auto insurance payments. Defendant also alleges that although he and plaintiff have given all of their children financial help and gifts, and two of the children are living in homes purchased by the parties, the children are self-supporting.
Defendant also argues that plaintiff fails to support her claim that the parties paid exorbitant expenses in cash. He contends that her claim that all purchases were paid using cash is contraindicated by her assertion that he maintains a safe deposit box containing $400,000 and the fact that she purchased $98,000 for clothing using a check or credit card. He also denies that he spends excessive amounts of money on tennis and golf. In addition, defendant presents a chart of plaintiff's monthly spending for the period from January 1, 2012 to December 31, 2012, the last full year before they separated, which he contends indicates that she spent only $10,635 per month. He thus concludes that the expenses listed in plaintiff's net worth statement are grossly inflated. In support, defendant emphasizes that plaintiff alleges $12,057 for gifts, $11,935 for contributions and $4,672 per month for vacation, which expenses alone total $28,664 per month, or $343,968 per year. She also includes $3,090 per month for insurance premiums, while asserting that she does not know the cost, and life insurance premiums of $8,637, which actually cost only $1,671. Defendant asserts that other expenses are inflated and/or include costs for the support of the parties' five emancipated children, for whom defendant is no longer obligated to support.
Defendant maintains that if the Maintenance Guidelines are utilized to calculate his pendente lite maintenance obligation, based upon income of $685,195, as indicated in the parties' 2012 income tax return (which had been prepared in draft but not yet filed as of the time defendant's papers were prepared) his maintenance obligation would be $13,575 per month, or $162,818 per year:
| Husband | Wife |
|---|---|
| Gross income | $685,1950 |
| Deductions | |
| NYC Tax | 249980 |
| 213510 | |
| FICA: medicare | 0 |
| Total: | 46,3490 |
| Adjusted income | 6388460 |
| 1st calculation | |
| $162,900 | |
| 20% of payee's income | 0 |
| Difference—result 1 | $162,900 |
| 2nd calculation | |
| $543,000 | |
| Payee's income | 0 |
| Sum | $543,000 |
| 40% of sum | $217,200 |
| Minus payee's income-Result 2 | $217,200 |
| Guideline amount | |
| Annually | $162,900 |
| Monthly | $13,575 |
Defendant does not indicate the amount paid for social security and medicare separately.
This amount reflects 30% of defendant's income up to and including the statutory income cap of $543,000.
This amount reflects defendant's income up to and including the statutory income cap of $543,000.
Defendant thus concludes that his pendente lite maintenance obligation is far less than the $45,658 per month that plaintiff requests in her motion. He further argues that this amount should be reduced by the $3,800 per month that he is paying directly as the carrying costs on the former marital residence, i.e., $2,500 for rent, $147 for internet/cable/telephone, $402 for water and sewer, $98 for the security system, $76 for the sprinkler system and $576 for homeowner's insurance. Thus, his monthly support obligation should be $9,774 ($13,575–$3,800). Defendant argues that this amount should be further reduced by $2,033, the cost of the housekeeper, since plaintiff currently lives alone in the former marital residence and is unemployed, for a monthly total of $7,741. Defendant also represents that he will make maintenance payments out of his earnings, as he always has, but that plaintiff will no longer have unlimited access to the parties' joint accounts and that his income will be deposited into individual accounts that he intends to open to satisfy his Court Order obligations (See Affirmation in Opposition, Paragraph 27).
Plaintiff's Reply
In reply, plaintiff argues that the income reported on the parties' income tax returns is not reflective of defendant's actual earnings. To support this claim, plaintiff alleges that in 2009, defendant deposited $3,127,000 into the parties' accounts and reported an income of $689,434 on his income tax return; in 2010, he deposited $3,675,733 and reported an income of $770,347; in 2011, he deposited $602,000 and reported an income of $580,894; and in 2012, he deposited $3,887,035 and reported an income of $685,195. Plaintiff further alleges that if one considers the amount of money earned with the expenses that defendant claims that he paid, he would have deficits of between $407,994 and $627,750 per year. In addition, plaintiff notes that defendant does not attach any 1099 or W–2 Forms to his papers to support his assertions, nor does he identify any of the partnerships or holding companies from which he receives income. Plaintiff goes on to assert that defendant also pays significant sums of money to RM and its employees from his personal accounts, indicating that he is an owner and not an employee. Plaintiff also denies any knowledge of a nominee agreement relating to the former marital residence and no copy of the agreement is provided.
Plaintiff goes on to assert that the expenses listed on her net worth statement are not inflated and that defendant's estimate of her expenses is incorrect, not supported by any evidentiary basis and does not include the expenses that she paid in cash. Plaintiff supports her claim that large amounts of cash were kept in the former marital residence with pictures of stacks of money. She contends that her assertion that she used cash to pay many expenses prior to the parties' separation is further supported by the fact that before the separation, between 2009 and 2012, her withdrawals from ATMs ranged from $12,800 to $20,557 per month; the withdrawals increased after the separation, when she no longer had access to the cash defendant kept in the house.
Dr. L alleges in her affidavit that the defendant's analysis is flawed in as much as he relies upon plaintiff's expenditures of cash and use of her credit cards after March 2013. Dr. L avers that this analysis is flawed because this reflects a period after the parties separated, when plaintiff no longer had access to cash from the unknown sources that the plaintiff allegedly had previously used to pay her expenses. Thus, Dr. L concludes that defendant's calculations and his representation of his cash flow are without merit. More specifically, Dr. L notes that while defendant alleges that he deposited $580,081 and $439,259 into the parties' accounts in 2013 and to date in 2014 respectively, he actually deposited $1,184,000 and $568,000. Further, a review of the deposits that he made between 2009 and 2012 reveal numerous unidentified deposits of amounts between $85,000 and $1,000,000. Dr. L concludes that these deposits differ from defendant's reported income by hundreds of thousands of dollars each year. Dr. L also opines that it is unlikely that the parties contributed one-third of their annual income to charity, as is also claimed by defendant, since such contributions would leave them with an average of only $245,000 to meet the families' expenses, which would also result in deficit spending. In addition, defendant's calculations do not take into account the undistributed amount of approximately $120,000 per year earned through the Family Trusts or the $74,000 per year that is spent on life insurance premiums.
Plaintiff thus concludes that the court should impute sufficient income to defendant to allow him to pay maintenance to her in an amount that would allow her to continue to live in her pre-separation life style.
Discussion
While it is clear that the parties' allegations with regard to their income and expenditures is impossible to reconcile at this stage of the proceedings, neither denies that they earned and spent a significant amount of money each year. In this regard, defendant admits annual earnings of well over half a million dollars a year. The court also notes that although plaintiff makes passing reference to DRL § 236 in support of her motion, she fails to follow the formula set out therein in calculating the award of maintenance that she seeks to obtain. Similarly, in asserting that plaintiff should be awarded only $7,741 per month as maintenance, defendant fails to address the issue of how the court should treat that portion of his income that exceeds the statutory cap of $543,000, as is also required pursuant to DRL § 236.
Accordingly, in making its determination, the court first notes that:
“The new formula for temporary maintenance requires the court to begin with the parties' gross income as reflected in their most recent federal tax returns, less FICA and city taxes. The court must make two alternate initial calculations, based on the payee's income and the payor's income up to an initial cap of $500,000 : first, the difference between 30% of the payor's income and 20% of the payee's income, and second, 40% of the parties' combined incomes, less the payee's income. The lesser of the results of these two calculations is the guideline amount of temporary maintenance' (§ 236 [B] [5–a][c][1] ). Where the payor's income exceeds $500,000, the court shall determine any additional guideline amount of temporary maintenance through consideration of [19 enumerated] factors' (§ 236[B][5–a][c][2][a] ), and shall set forth the factors it considered and the reasons for its decision' (para [c][2][b] ). Next, the court must consider whether the guideline amount—the presumptive award—would be unjust or inappropriate,' on consideration of 17 enumerated factors (§ 236[B][5–a][e][1] ).”
This cap has since been raised to $543,000.
(Khaira v. Khaira, 93 AD3d 194, 197–198 [2012] ; see also Francis v. Francis, 111 AD3d 454, 455 [2013] [to determine temporary maintenance, the motion court had to apply DRL § 236[B][5–a] ), which became effective on October 12, 2010]; Goncalves v. Goncalves, 105 AD3d 901, 902 [2013] [DRL § 236(B)(5–a) sets forth the substantive and procedural requirements for an award of temporary maintenance] ). It must also be noted that it has been held that “when a court is unable to perform the calculation established by Domestic Relations Law § 236(B)(5–a)(c) as a result of being presented with insufficient evidence to determine gross income, the court shall order the temporary maintenance award based upon the needs of the payee or the standard of living of the parties prior to commencement of the divorce action, whichever is greater' “ (Davydova v. Sasonov, 109 AD3d 955, 956 [2013], citing DRL § 236[B][5–a][g] ).
Accordingly, defendant's calculation of his basic maintenance, as calculated on the first $543,000 of his earnings, as amounting to $13,575 per month, as set forth above, is proper.
The court must then determine whether or not additional maintenance should be awarded based upon defendant's earning in excess of $543,000 per year. In so doing, the court's discretion must be regulated by the statutory factors enumerated in § 236(B)(5–a)(c)(2)(a) (see generally Lennox v. Weberman, 109 AD3d 703 [2013] ). Thus, the court notes that the parties have been married over 39 years and that plaintiff has not been employed outside the home since the birth of their second child in 1982, when the parties decided that she would remain at home and care for the children (DRL § 236[B][5–a][c][2][a] [i], [ii], [xviii] ). Thus, plaintiff has had no earnings during the substantial duration of the marriage (DRL § 236[B][5–a][c][2][a][ii] ). Based upon the allegations of both parties, the court also finds that the parties enjoyed a very comfortable standard of living during the marriage, both having spent very significant amounts of money (DRL § 236[B][5–a][c][2][a] [iii] ). In view of the fact that plaintiff has not been employed for a significantly long period of time and is nearly 60 years of age, her apparent ability to earn significant sums of money in the future without further proof is uncertain, at best (DRL § 236[B][5–a][c][2][a][iv], [v] and [xviii] ).
Further, as is further argued by plaintiff, it has been held that:
“The formula to determine temporary spousal maintenance that is outlined in Domestic Relations Law § 236(B)(5–a)(c) is intended to cover all of a payee spouse's basic living expenses, including housing costs, the costs of food and clothing, and other usual expenses. However, it may be appropriate to direct payment by the monied spouse of the mortgage and taxes on the marital residence and other expenses of the nonmonied spouse under certain circumstances (see id. ). Here, in light of the evidence that the plaintiff's income exceeded $500,000 and the gross disparity between the plaintiff's income and the defendant's income, the Supreme Court properly awarded additional support in the form of a directive to the plaintiff to pay the mortgage and taxes on the marital residence .”
(Vistocco v. Jardine, 116 AD3d 842, 843–844 [2014] [internal citations omitted]; accord Francis, 111 AD3d at 455 ).
The court will also consider plaintiff's standard of living, as it relates to the budget that she has set forth in her Statement of Net Worth, along with the concomitant need to impute income to defendant in order to allow her to continue to maintain the pre-separation standard of living. In so doing, the court concludes that many of the expenses included are inflated. First, plaintiff includes the carrying costs for the former marital residence, which she requests that defendant be ordered to pay directly. In addition, the plaintiff's claims of $1,589 per month for food, $1,882 per month for clothing for herself and $750 for accessories must also be deemed to be included in the award of basic maintenance. The sum of $254 for clothing for the children is more appropriately addressed in determining the proper amount of child support, if any, that defendant will be ordered to pay. Further, defendant has agreed to continue to pay for the parties' medical insurance and to continue to maintain the life insurance policies that are currently in effect for the benefit of plaintiff and their son, (relating to premiums in the amount of $8,637 and $3,090), plus medical expenses of $3,024. These expenses are double counted in plaintiff's request for an award of maintenance. Similarly, the inclusion of school expenses for their son of $4,323 per month, which defendant has been paying directly and agrees to continue to pay in the future, should not be included in a maintenance award provided defendant continues to pay the same. Similarly, the court finds that an expense of $1,410 for checks to cash/ATMS is impermissible double counting of other specific expenses incurred, as is $60 for computers and related expenses, $481 for department stores and general shopping and $152 for miscellaneous expenses. In addition, plaintiff also does not provide evidence that she maintains an office for which she needs supplies ($184), nor that she is a professional incurring fees ($190). As raised by defendant, the court also notes that the inclusion of $4,672 for vacations, $12,057 for gifts and $11,925 for charitable contributions also appears to be unnecessarily inflated. The $12,057 per month for gifts appears to be for gifts made to the parties' adult children; defendant's obligation to support these children is more fully discussed hereinafter.
Accordingly, given the finding that plaintiff has inflated and improperly double counted many of her expenses in calculating her budget, the court finds that the budget does not accurately reflect her expenses. Thus, the court declines to award plaintiff maintenance based upon the expenses set out in her net worth statement.
Similarly, although plaintiff argues that income should be imputed to defendant, she fails to set forth any evidentiary basis that would allow the court to determine the amount by which, if any, that defendant under reports in his income. In so holding, the court notes that plaintiff relies upon the deposits made into the parties' joint accounts in arguing that defendant earns more money that he reports. Since both plaintiff and defendant acknowledge that defendant deposits money into his personal accounts for business purposes and makes withdrawals to pay business expenses, the amount of his deposits does not necessarily reflect the amount of his earnings. In this regard, the court also notes, as argued by defendant, that he can hardly claim to be hiding income that is evidenced by deposits into the parties' joint bank accounts.
The court further finds, however, as noted above, that the parties lived a luxurious lifestyle before they separated. Further, since plaintiff has not been employed outside the home since the birth of their second child in 1982 and she is nearly 60 years old, plaintiff cannot be expected to earn sufficient income to support herself, at least at this nascent stage of the parties separation and this proceeding. Moreover, in arguing that his support obligation should be limited to only $7,741 per month, defendant fails to address the issue of how the court should treat that portion of his income that exceeds the statutory cap of $543,000, as is also required pursuant to DRL § 236 (see generally Brown v. Brown, ––– AD3d –––– 2014 N.Y. Slip Op 08776 [2014] ).
Thus, in order to balance plaintiff's request for sufficient funds to maintain her in the style in which she clearly lived before the parties' separation and defendant's earnings, the court finds that in this case, it is appropriate to base plaintiff's award of pendente lite maintenance on the full amount of defendant's earning for 2012. Using this amount, defendant's maintenance obligation would be $15,971 per month:
| Husband | Wife | |
|---|---|---|
| Gross income | $685,195 | 0 |
| Deductions | ||
| NYC Tax | 24998 | 0 |
| FICA: social security | 21351 | 0 |
| FICA: medicare | 0 | |
| Total: | 46,349 | 0 |
| Adjusted income | 638846 | 0 |
| 1st calculation | ||
| 30% of payor's income | 191653 | |
| 20% of payee's income | 0 | |
| Difference—result 1 | 191653 | |
| 2nd calculation | ||
| Payor's income | 638846 | |
| Payee's income | 0 | |
| Sum | 638846 | |
| 40% of sum | 255538 | |
| Minus payee's income—Result 2 | 255538 | |
| Guideline amount | ||
| Annually | 191653 | |
| Monthly | 15971 |
Further, given the amount of money earned by defendant, in addition to the fact that he does not deny plaintiff's assertion that the value of his real estate holdings approximate $15,000,000, his support obligation will not be reduced by reason of the expenses that he has represented that he will continue to pay directly on behalf of plaintiff. In addition, plaintiff will be required to pay for her own unreimbursed medical expenses and her housekeeper from this award. The award of $15,971 shall be retroactive to the date of plaintiff's application; shall be paid by the 1st of each month; and shall be taxable to the wife tax deductible for the husband, since plaintiff fails set forth any rationale for a departure from the norm envisioned by current Internal Revenue Code provisions (see Siskind v. Siskind, 89 AD3d 832, 833 [2011] ; Grumet v. Grumet, 37 AD3d 534, 536 [2007] ). Finally, while the court will not monitor the funds that defendant utilizes to meet his pendente lite maintenance obligation, he is advised that the payments made will not be allowed to reduce plaintiff's right to equitable distribution.
Pendente lite awards of maintenance “reflect an accommodation between the reasonable needs of the moving spouse and the financial ability of the other spouse with due regard for the parties' pre-separation standard of living.” Fini v. Fini, 107 AD3d 758, 758 [2d Dept 2013]. “Any perceived inequities in pendente lite support can best be remedied by a speedy trial, at which the parties' financial circumstances can be fully explored' “ Margolin v. Margolin, 117 AD3d 996, 996 [2d Dept 2014], quoting Conyea v. Conyea, 81 AD3d 869, 870 [2d Dept 2011].
Child Support
The Parties' Contentions
In her motion for pendete lite relief, the plaintiff seeks an Order directing the defendant to pay 100 % of the parties son's private school tuition and school related expenses. In her Affidavit in Support of her motion, the plaintiff argues that her son is still being raised by her in that her son regularly comes home to visit and stays at the former marital residence. She further asserts that while the defendant has provided funds in the parties joint bank accounts for the purpose of paying for expenses related to their son, such deposits are inconsistent.
In opposition, defendant alleges that the parties' unemancipated son is now over 18 years old and has lived at the Yeshiva since he was 16, so he is not supported by plaintiff. Instead, defendant pays all of his expenses. Moreover, when the son returns to Brooklyn for the weekend approximately every other month, and for holidays, he divides his time between the parties. Defendant further argues that he cannot be ordered to support their remaining emancipated children.
Discussion
In addressing this issue, it is first noted that the law is clear that “the obligation of a parent to support his or her child normally terminates when the child reaches the age of 21 years (see Family Court Act § 413[1] ; Social Services Law § 101[1] ; Bani–Esraili v. Lerman, 69 N.Y.2d 807, 808 [1987] ), [although] a parent may voluntarily assume an obligation to support the child thereafter (see Genther v. Genther, 180 A.D.2d 662, 663 [1992] ; Hirsch v. Hirsch, 142 A.D.2d 138, 140 [1988] )” (Cancilla v. Cancilla, 22 AD3d 490, 491 [2005] ; see also DRL § 236(B)(1)(f) ; Roe v. Doe, 29 N.Y.2d 188, 192–193 [1971] ; Matter of Gold v. Fisher, 59 AD3d 443, 444 [2009] ). Accordingly, although the parties have continued to offer financial support to their emancipated children, defendant cannot be ordered to do so.
In addition, it must be noted that “[c]ourts considering applications for pendente lite child support may, in their discretion, apply the CSSA standards and guidelines, but they are not required to do so” (Davydova, 109 AD3d at 955, citing Rubin v. Della Salla, 78 AD3d 504, 505 [2010] ; DRL § 236[B] [7] ; George v. George, 192 A.D.2d 693, 693 [1993] ). In this case, the court declines to apply the CSSA for numerous reasons. First, since the son is over 18 years of age, he is no longer subject to a custody order (see e.g. Matter of Crowe v. McKay, 35 AD3d 735 [2006] ; Matter of Sassower–Berlin v. Berlin, 31 AD3d 771 [2006] ). Thus, in this case, there is no custodial parent. Further, neither party denies that the son resides at school on a full-time basis and only returns to the former marital residence on the occasional weekend to visit. What is more, there is no application for support in the instant application other than the request by the plaintiff that the defendant be Ordered to continue to pay100% of the private school tuition and school related expenses. Finally, defendant represents that he has been paying all of his son's expenses and that he intends to continue to do so in the future. Accordingly, plaintiff's request for the defendant to continue to pay 100 % of the parties son's private school tuition and school related expenses is granted, but the defendant is directed to pay those expenses as they are paid now and to maintain the status quo as it regards these expenses. See Wortman v. Wortman, 11 AD3d 604, 607, 783 N.Y.S.2d 631, 634 [2nd Dept, 2004]. Upon a substantial change of the current circumstances either party may seek to move to revisit this issue.
The Vacation Home
The Parties' Contentions
In support of that branch of her motion seeking exclusive occupancy of the vacation home, plaintiff argues that defendant has not used the home since he moved out of the former marital residence.
In opposition, defendant argues that plaintiff's request is premature and should be denied without prejudice. He further avers that he has requested that until the divorce action is resolved, the parties split the use of home. Plaintiff however, allegedly unilaterally changed the locks and removed defendant's possessions from the premises. Defendant asserts that if this action is not resolved before the summer, he intends to seek exclusive occupancy of the home, since plaintiff has already had exclusive use of the home year round to date.
Discussion
Inasmuch as it does not appear that this action will be resolved by the summer of the current year, the court will address the parties' respective demands for exclusive occupancy of the vacation home. In so doing, the court first notes that both parties maintain their full-time residences elsewhere and since both request exclusive occupancy, they are found to agree that it would be inappropriate for them to occupy the vacation home at the same time. Accordingly, in the interest of fairness, the parties shall share occupancy of the home. Unless agreed otherwise in writing, defendant shall have exclusive occupancy of the vacation home in June and July and plaintiff shall have exclusive occupancy in August and September.
Counsel Fees
Plaintiff's Contentions
Plaintiff argues that because defendant is the monied spouse, he should be ordered to pay her attorneys' fees in the sum of $75,000, in order to even the playing field. She asserts that to date, she has paid her attorneys $106,244 from the parties' joint accounts. She believes that the requested award of attorneys' fees is needed because she anticipates that the money will be spent in conducting discovery and on motions that will be made in this action.
Defendant's Contentions
Defendant argues that plaintiff's demand for an award of attorneys' fees should be denied for several reasons. First, he contends that the motion is unnecessary, as he has continued to pay all of the expenses incurred by plaintiff. He also argues that since plaintiff has already paid her attorney $106,244, any demand for additional fees is excessive. To support this assertion, defendant alleges that he has paid his attorney only $55,000 to date. He further avers that Dr. L has done the majority of the investigative work for this motion and has already been paid $62,232.
Discussion
In addressing this branch of plaintiff's motion, the court notes that:
“Domestic Relations Law § 237 provides that in any action for a divorce, the court may direct either spouse to pay counsel fees directly to the attorney of the other spouse to enable the other party to carry on or defend the action as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties' (Falcone v. Falcone, 109 AD3d 787, 788 [2013] ; see Domestic Relations Law § 237 ). The statute provides that there shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse' (Falcone v. Falcone, 109 AD3d at 788 ). Such an award is intended to ensure that the nonmonied spouse will be able to litigate the action, and do so on equal footing with the monied spouse' “ (id., quoting Prichep v. Prichep, 52 AD3d 61, 65 [2008] ; see Coven v. Coven, 82 AD3d 1144, 1145 [2011] ). The issue of interim counsel fees is controlled by the equities of the case and the financial circumstances of the parties' (Falcone v. Falcone, 109 AD3d at 788 ; see Tadesse v. Amanu, 116 AD3d 1034, 1035 [2014] ; Silver v. Silver, 46 AD3d 667, 669 [2007] ; Wald v. Wald, 44 AD3d 848, 850 [2007] ). An award of interim counsel fees to the nonmonied spouse will generally be warranted where there is a significant disparity in the financial circumstances of the parties' (Falcone v. Falcone, 109 AD3d at 788 ; see Kaminash v. Levi, 102 AD3d 837, 838 [2013] ; Palmeri v. Palmeri, 87 AD3d 572, 572 [2011] ; Penavic v. Penavic, 60 AD3d 1026, 1028 [2011] ; Prichep v. Prichep, 52 AD3d 61 ). Accordingly, courts should not defer requests for interim counsel fees to the trial court, and should normally exercise their discretion to grant such a request made by the nonmonied spouse, in the absence of good cause—for example, where the requested fees are unsubstantiated or clearly disproportionate to the amount of legal work required in the case—articulated by the court in a written decision' (Prichep v. Prichep, 52 AD3d at 65–66 ; see Penavic v. Penavic, 60 AD3d at 1028 ).”
(Carlin v. Carlin, 120 AD3d 734, 734–735 [2014] ; see also Khaira, 93 AD3d 194 ).
Here, there is no doubt that defendant is in a far better financial position than plaintiff to pay counsel fees. Moreover, it is also well established that a party should not have to deplete his or her assets in order to have legal representation comparable to that of the monied spouse (see e.g. Lennox, 109 AD3d at 704, citing Wolf v. Wolf, 160 A.D.2d 555, 556 [1990] ). Further, in view of the extent of defendant's income and real estate holdings, this is certainly a complex case. Finally, there are more than sufficient marital assets to reallocate any award of interim counsel fees made at trial, if defendant succeeds in establishing that the award is excessive. However, since plaintiff has already paid her attorneys in excess of $100,000, at this stage of the proceedings, she is awarded only an additional amount of $50,000 which, as noted above, is subject to reallocation at trial.
Forensic Fees
The Parties' Contentions
In support of her request for an award of $100,000 to pay her experts, plaintiff argues that since defendant is not forthcoming with details regarding his income and expenses, it is necessary for her to retain a forensic accountant to analyze the parties' lifestyle so that the court can properly evaluate their income and her right to equitable distribution. Plaintiff also notes that to date, she has been billed $57,000 for forensic services rendered.
In opposition, defendant argues that since plaintiff made no effort to have a neutral appraiser appointed before retaining her expert, he should not be held responsible to pay the fees. Defendant also alleges that plaintiff has already paid her expert the fees billed using funds withdrawn from the parties' joint accounts.
Discussion
In addressing this branch of plaintiff's motion, the court recognizes that:
“The award of expert witness fees in a matrimonial action is left to the sound discretion of the trial court, and should be made upon a detailed showing of the services to be rendered and the estimated time involved (see Avello v. Avello, 72 AD3d 850 [2010] ). Here [plaintiff] submitted an affidavit from the forensic accountant she retained which explained the services to be rendered and the estimated cost involved for his time. [Plaintiff] also provided a copy of the accountant's curriculum vitae which demonstrated his experience in the field. Thus, the Supreme Court had a sufficient basis to award expert fees....”
(Vistocco, 116 AD3d at 844 ; see also Carlin, 120 AD3d at 735–736 ).
As discussed above, in view of defendant's income and real estate holdings, this case will certainly be a complex case necessitating forensic evaluations. See McGarrity v. McGarrity, 49 AD3d 824, 826, 854 N.Y.S.2d 522, 524 [2nd Dept, 2008]. Further, because of the sharp disagreement between the parties with regard to their spending and earnings, the court agrees that a plaintiff is entitled to retain her own expert. Finally, as was also noted above, the parties have sufficient income and assets to allow for each of them to retain the expert appraiser of his or her choosing.
Accordingly, since plaintiff has already been billed by the expert in excess of $50,000 an additional award of $50,000 is made at this stage of the proceedings, subject to reallocation at trial.
Conclusion
Plaintiff's motion is granted to the extent of directing defendant: (1) to pay all of the carrying charges and utilities on the former marital residence to the same extent that he has paid during the marriage, to wit: monthly rent, water charges, sewer charges and homeowners' insurance; (2) to pay all of the carrying charges and utilities on the vacation home; (3) to pay 100% of their son' private school yeshiva education and school-related expenses; (4) to pay for medical insurance for plaintiff and the son and 100% of the son's unreimbursed medial and dental expenses; (5) to give plaintiff exclusive use and occupancy of the former marital residence; and (6) directing him to maintain in full force and effect the life insurance policy on his life for the benefit of plaintiff and the son that is presently in effect.
Defendant, as previously stated, does not oppose this relief.
The parties shall share occupancy of the vacation home. Unless agreed otherwise in writing, defendant shall have exclusive occupancy of the vacation home in June and July and plaintiff shall have exclusive occupancy in August and September.
Defendant is also ordered to pay plaintiff the sum of $15,971 per month in pendente lite maintenance, which shall be paid retroactive to the date of plaintiff's application, shall be paid by the 1st of each month, shall be taxable to the wife, tax deductible for the husband and shall not serve to reduce plaintiff's right to equitable distribution. To the extent that maintenance has not been paid as awarded herein during the months since the application was made, the Defendant husband is directed to pay an additional $5,000.00 per month until those arrears are fully paid.
The Defendant husband is directed to pay the Plaintiff the sum of $50,000.00 as interim counsel fees and $50,000 in expert fees to be paid directly to the Plaintiff wife's attorney and the forensic accountant within twenty days of the date of this Order.
Plaintiff may enter judgment with the Clerk of the Court without the need for further judicial intervention for the sums to by paid to counsel and to the expert, together with costs and interest, upon 15 days' written notice of default to defendant by certified mail. All other relief requested is denied.
Furthermore, the parties are reminded of the automatic stays in effect pursuant to Domestic Relations Law section 236 B[2][b] and the Uniform Rules—Trial Courts section 202.16[a]. Failure to comply with same may have sever repercussions.
Plaintiff to serve a copy of this Order with Notice of Entry upon Defendant within ten days of Entry.
This matter is scheduled for a pretrial conference and the parties are directed to appear on that date.
The foregoing constitutes the Decision and Order of the Court.