Opinion
202475/06.
Decided July 14, 2008.
Michael P. Vessa, Esq., Vessa Wilensky, P.C., Uniondale, New York, for the Plaintiff.
Arnold S. Klein, Esq., Kenneth Koopersmith, LLC, Garden City, New York, for the Defendant.
The Plaintiff moves pursuant to CPLR § 2221(e) seeking leave to renew the previously interposed Order to Show Cause for pendente lite relief and upon such renewal granting the Plaintiff the amount of $2,451 in weekly maintenance and the sum of $2,000 per week in child support. The Plaintiff additionally moves for the following forms of relief: an order directing the Defendant to pay the sum of $100,000 for interim counsel fees; an order directing the Defendant to pay the sum of $60,500 to Standard Valuation Services as an initial retainer to enable them to appraise the Defendant's numerous real estate assets, including an analysis of active versus passive appreciation in the commercial properties; and an order directing the Defendant to pay the interim sum of $20,000 to Lazar Lipton Valuation Services LLC so as to permit them to value the Defendant's various business interests, as well as to identify and quantify the Defendant's compensation and distributions, real estate license and any benefits paid to the Defendant.
The parties to the within action were married on November 3, 1990 ( see Affidavit in Support at Exhibit "F"). There are three children of this marriage, to wit: E.L.G., J.D.G., and I.R.G. ( id.). The Plaintiff possesses a Masters Degree in Speech Pathology, however, has not worked outside the home since June of 1991 ( id.). The Defendant is employed in the area of property and real estate management and reported an income of $636,357 for fiscal year 2006 ( id. at Exhibit "G").
On or about November 9, 2006, the Plaintiff moved by Order to Show Cause requesting various forms of pendente lite relief. By short form order dated April 5, 2007, this Court granted certain portions of the relief therein requested including retroactively awarding the Plaintiff the sum of $575 per week in maintenance and $500 per week in child support ( id. at Exhibit "A"). Included in that decision was a directive that the Defendant was to pay the carrying charges on the marital residence, to continue to maintain policies of life, auto, as well as medical, and dental insurance on behalf of both the Plaintiff and the children, and to pay all of their un-reimbursed non-elective medical, psychiatric and dental expenses ( Id.).The Plaintiff now interposes the within application seeking leave to renew the prior pendente lite application, based upon an alleged misrepresentation by the Defendant with regard to the total amount of his income for 2006 ( id. at ¶¶ 9,10,11). The Plaintiff contends that in his sworn affidavit submitted in opposition to the Plaintiff's original application, the Defendant affirmatively represented that his income in 2006 would be no greater than $445,000, when in actuality he earned $637,357 ( id. at ¶ 9; see also Exhibit "G"). The Plaintiff further contends that the Defendant failed to clarify the true amount his income for 2006 although he was presented with an opportunity to do so, by way of his Reply Affidavit submitted in connection with the original application ( id. at ¶ 10).
The Plaintiff asserts that throughout the course of the marriage the Defendant never shared information with regard to the state of the marital finances and that it was not until December of 2007 when she received a completed copy of the parties' tax return for 2006, that she was made aware of the total amount of the Defendant's income ( id. at ¶ 11). She urges this Court to grant her additional maintenance and child support and posits that she in entitled to support so as to maintain a lifestyle commensurate with that enjoyed by herself and the children throughout the course of the marriage ( id. at ¶ 7).
With particular regard to her request for additional counsel fees, the Plaintiff asserts that she has been forced to borrow $41,298 from her parents to pay her legal fees and is currently indebted to her counsel in excess of $50,000 ( id. at ¶ 14). As to her request for expert fees, the Plaintiff contends that given that she has always been "kept in the dark" regarding all financial matters, she is in need of expert assistance to properly evaluate both the Defendant's business and real estate interests, the latter of which are allegedly worth in excess of $100,000,000 ( id. ¶ 15; see also Affirmation in Support at ¶ 52). The Plaintiff reiterates that she is not in a financial position to pay the costs associated thereto and prays that the Court will order the Defendant to pay $60,500 as an initial retainer for appraisal fees and $20,000 as an initial retainer as for her forensic accounting fees ( id.).
Counsel for the Plaintiff additionally stresses the need for these experts and argues that the information they can provide is integral to the Plaintiff's ability to demonstrate the appreciation of the numerous real estate properties, and that such appreciation is attributable to the Defendant's active involvement therewith ( see Affirmation in Support at ¶ 52). In connection with this branch of the application, the Plaintiff annexes the sworn affidavits of Matthew L. Smith, of Standard Valuation Services and Joan A. Lipton, of Lazar Lipton Valuation Services, LLP. Each of these experts separately outlines their qualifications, the attendant complexities of the instant case, the services each will render and the costs associated therewith.
The Defendant opposes the within application and cross-moves for an order setting down a pre-trial evidentiary hearing to determine, in limine, the issue of whether the appreciation in the properties owned by the Defendant's family real estate holding companies, in which the Defendant owns a small minority interest, is attributable to the Defendant's individual active management of the properties, or rather the result of passive market forces.
A motion for leave to renew must be predicated upon new or additional facts, which although they may have been in existence at the time of the initial application, were not known by the moving party and thus were not presented to the Court ( Orange and Rockland Utilities, Inc. v Assessor of the Town of Haverstraw, 304 AD2d 668 [2d Dept 2003]). As a general proposition, while a motion seeking leave to renew should be based upon facts which were newly discovered, the Court, in its discretion can still grant such leave upon information which was indeed known to the moving party provided that such party provides "reasonable justification for the failure to present such facts on the prior motion" ( Orange and Rockland Utilities, Inc. v Assessor of the Town of Haverstraw, 304 AD2d 668 [2d Dept 2003], supra; Yarde v New York City Transit Authority, 4 AD3d 352 [2d Dept 2004]; CPLR § 2221[e]).
In the instant matter, the Plaintiff has demonstrated both that there is new information with respect to the Defendant's actual 2006 income and that such information relative thereto was unavailable her until in or about December of 2007 when she received a completed tax return relevant to fiscal year 2006. Thus, the Court grants the Plaintiff's application for renewal and upon such renewal addresses initially the Plaintiff's request for additional child support.
Counsel for the Plaintiff argues that the Plaintiff should be awarded an additional sum in child support based upon the approximate sum of $200,000 which exists between $445,000, which the Defendant previously represented his income to be, and $636,357, the amount of income as reported on the Defendant's 2006 tax return ( see Affirmation in Support at ¶ 37).
In calculating child support, Domestic Relations Law § 240(1-b)(c) requires the Court to initially determine the combine parental income from all known sources and then to apply a particular percentage up to the first $80,000. The percentage that the Court is to apply is strictly governed by the statute and is predicated upon the number of children entitled to support, to wit: 17% for one child; 25% for two children; 29% for three children; and 31% for four children; and no less than 35% for five or more children (Domestic Relations Law § 240 [1-b][b][3]). Pursuant to Domestic Relations Law § 240(1-b)(c)(3), where as here, the combined parental income exceeds that of $80,000, the Court ". . . shall determine the amount of child support for the amount of the combined parental income in excess of such dollar amount through considerations of the factors set froth in paragraph (f) of this subdivision . . ." Among the enumerated considerations, two are particularly relevant to the facts sub judice. Specifically, "factor (3)" allows consideration of "the standard of living the child would have enjoyed had the marriage or household not been dissolved and "factor (7)" addresses the situation where "the gross income of the one parent is substantially less that the other parent's gross income." The record as developed indicates that the children of this marriage enjoyed a high standard of living residing in a home in Muttontown, New York as well as attending exclusive summer camps and being lavished with Bar/Bat Mitzvahs costing in excess of $70,000. Additionally, the record herein clearly evidences a great disparity in income between the Plaintiff and the Defendant.
Thus, in consideration of the foregoing, the Court awards the Plaintiff additional child support in the amount of $519.31 per week. In awarding this amount, the Court employed the Defendant's adjusted income for 2006 in the amount of $636,357 and subtracted therefrom the annual carrying charges attributable to the Defendant in the amount of $98,240 leaving the sum of $538,117. Then, taking the difference between $538,117 and the Defendant's previously reported income of $445,000, the Court arrived at $93,117 and applied 29% thereto which yielded $27,003.93 divided by 52 weeks which equals an additional weekly sum of $519.31.
By Order of this Court dated April 5, 2007, the Defendant was directed to pay all the carrying charges "including but not limited to, mortgage payments, insurance and utilities such as gas, electricity, heat, telephone service, the housekeeper and cable TV for the marital residence"( see Affidavit in Support at Exhibit "A"). Inasmuch as the Statement of Net Worth provided by the Plaintiff does not outline the actual costs attendant to these charges, the Court employed those amounts as recited in the Defendant's Statement of Net Worth ( id. at Exhibit "K"). A review thereof reveals the following monthly charges: $5,770 for mortgage and amortization; $341 for fuel; $309 for electricity; $115 for telephone; $60 for water; $160 for cable/internet; and $1,440 for the housekeeper ( id.). The total monthly amount of these charges is $8,195 multiplied by twelve months yields annual carrying charges totaling $98,340. When computing child support, carrying charges must be deducted from a party's gross income ( Krantz v Krantz, 175 AD2d 863 [2d Dept 1991]; see also Cohen v Cohen, 286 AD2d 698 [2d Dept 2001]).
The award is retroactive to the date of service of the original application (Domestic Relations Law § 236B(6); Selznick v. Selznick, 251 AD2d 489 [2d Dept. 1998]). Retroactive sums due by reason of this award shall be paid at the rate of $100 per week in addition to the sums awarded until all arrears have been satisfied. The Defendant may take a credit for sums voluntarily paid for actual maintenance and support of the Plaintiff and the children incurred after the making of this motion and prior to the date of this decision for which he has canceled checks or other similar proof of payment ( see Daniels v Daniels, 243 AD2d 254 [1st Dept. 1997]; Ferraro v. Ferraro, 257 AD2d 598 [2d Dept 1999]). The first payment hereunder shall be made within fifteen (15) days of the date of this decision and then weekly thereafter.
When awarding temporary maintenance, the court considers and balances the factors enumerated in Domestic Relations Law § 236, Part B(6), such as the financial status of the respective parties, their age, health, necessities and obligations, the nature and duration of the marriage, the present and future capacity of each of the parties to be self-supporting, the tax consequences to the parties and the income which the parties are capable of earning by honest efforts ( Mulverhill v. Mulverhill, 268 AD2d 948 [3d Dept 2000]; see also, Wildenstein v. Wildenstein, 251 AD2d 189 [1st Dept 2000]). Ultimately, the making of an award of temporary maintenance is "an accommodation of the means of the supporting spouse and the reasonable needs' of the needy spouse ( see Domestic Relations Law § 236, Part B, subd. 6 par. a)." Van Ess v. Van Ess, 100 AD2d 848 [2d Dept. 1984); see also: Goodson v. Goodson, 135 AD2d 604 [2d Dept 1987]; Kristiansen v. Kristiansen, 144 AD2d 441 [2d Dept 1988]).
Given that the Plaintiff, by previous court order, is currently receiving the weekly amount of $575, and in consideration of the financial obligations with which the Defendant is charged by both this order and that signed on April 5, 2007, that branch of the Plaintiff's application which seeks an order granting her an increase in the amount of maintenance from $575 per week to $2,451.61 per week is hereby DENIED ( see Ryan v Ryan, 186 AD2d 245 [2d Dept. 1992]).
Domestic Relations Law § 237 authorizes the court to direct either spouse to pay counsel fees in order to enable the other spouse 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( DeCabrera v. Cabrera-Rosete, 70 NY2d 879). In a recent decision, the Appellate Division, Second Department, reiterated and underscored the important purpose underlying Domestic Relations Law § 237, the substance of which "is designed to redress the economic disparity between the monied spouse and the non-monied spouse. Recognizing that the financial strength of matrimonial litigants is often unequal-working most typically against the wife — the Legislature invested Trial Judges with the discretion to make the more affluent spouse pay for the legal expenses of the needier one. The courts are to see to it that the matrimonial scales are not unbalanced by the weight of the wealthier litigants wallet" ( Prichep v Prichep, 2008 WL 1987254 [2d Dept 2008] quoting O'Shea v O'Shea, 93 NY2d 187).
In the instant matter, given the Plaintiff's protracted absence from the work force, the large income disparity as exists between the parties, and the complicated nature of the within litigation, the Plaintiff is awardedadditional interim counsel fees in the sum of $70,000 to be paid by the Defendant directly to the Plaintiff's attorney, within 25 days after the date of this decision. This award is made without prejudice to further applications for additional sums as is necessary at the time of trial or sooner ( Mica v. Mica, 275 AD2d 765[2d Dept. 2000]). If payment is not made as directed herein, upon presentation of an affirmation of non-payment, the Clerk of the County is directed to enter judgment in that specific amount.
While a court is empowered to award expert fees pendente lite, such an award ". . . must be based upon sound judicial discretion after weighing applications which set forth in detail (1) the nature of the marital property involved; (2) the difficulties involved, if any, in identifying and evaluating same; (3) the services to be rendered and an estimate of the time involved; and (4) the movant's financial status ( Ahern v Ahern, 94 AD2d 53 [2d Dept 1983]).
The Court notes that this branch of the Plaintiff's application was previously denied without prejudice to renew subsequent to further discovery being conducted to ascertain "if the assets held by the Defendant are deemed to be marital or separate property". To this point, the Plaintiff concedes that while she has never owned any interest in the Defendant's businesses or property, she nonetheless asserts that over the years she made numerous and uncounted indirect contributions which aided in the appreciation of the Defendant's business and real estate interests ( see Affidavit in Reply at ¶ 5).
The Domestic Relations Law provides that when the appreciation of a separately held asset is due in part to the indirect contributions by the non-titled spouse, including such contributions as those of being a parent and homemaker, the appreciation is deemed to be marital property ( Price v Price, 69 NY2d 8; Domestic Relations Law § 236[B][5][d][6]). At this juncture in the litigation, the Court finds that the Plaintiff has sufficiently demonstrated a reasonable likelihood that over the course of this 17 year marriage she has provided numerous indirect contributions to the marriage which enabled the Defendant to actively participate in the managing of his business and real estate interests which participation aided in adding to their value.
Thus, the branch of the motion seeking interim accountant's and appraiser's fees is GRANTED. It is clear from a reading of the history of this case that the Plaintiff is the non-monied spouse as contrasted to the Defendant who appears to be possessed of significant real estate holdings. Moreover, as noted, the particular experts that the Plaintiff seeks to retain, have properly set forth in their respective affidavits, the complexity of the instant matter, the work to be rendered, and the costs attendant thereto ( see Ganin v Ganin, 114 AD2d 883 [2d Dept 1985]). Thus, to enable the Plaintiff to have the necessary information both with respect to the Defendant's real estate holdings and business interests and to obtain a proper and accurate evaluation of the Defendant participation therewith, the Court awards the Plaintiff the sum of $60,500 as an initial retainer to employ the service of Standard Valuation Services to appraise the Defendant's real estate assets. This award is subject to reallocation at trial as to afford the Defendant the opportunity to set forth his proof at trial that any appreciation in the value of his real estate holdings were the result of passive market conditions and not his active participation in the business during the marriage. Additionally, the Court awards the Plaintiff the sum $20,000 as an initial retainer for the hiring of Lazar Lipton Valuations Services for the purposes of evaluating the Defendant's numerous business interests, his real estate license, as well as to identify and articulate the amount of compensation and or distributions that the Defendant receives therefrom (Domestic Relations Law § 237; Levi v. Levi, 201 AD2d 794 [3d Dept. 1994]). This award, as well, is subject to reallocation at trial.
The Defendant's Cross-Motion for a pre-trial hearing is DENIED. While a motion in limine can be interposed pre-trial for the purposes of determining that certain inadmissible evidence will not be referred to or offered at trial, inasmuch as the Plaintiff's application for expert witness fees has just been granted herein, she has not as yet had a fair opportunity to retain her experts, to both rebut the Defendant's experts, as well as to opine as to the very matters upon which the Defendant demands a ruling.
All matters not decided herein are hereby denied.
This constitutes the decision and order of this court.