Opinion
09-20-2024
J.M., Plaintiff, v. D.E.S., Defendant.
Counsel for Plaintiff: Pryor Cashman LLP By: Judith L. Poller, Esq. & Mark S. Randall, Esq. Counsel for Defendant: Cohen Clair Lans Greifer & Simpson LLP By: Shannon Rogers Simpson, Esq., David V. Sanchez, Esq., & Jenna R. Weinblatt, Esq. Counsel for the Children: Paul Eric Rudder, Attorney At Law By: Paul E. Rudder, Esq.
Unpublished Opinion
Counsel for Plaintiff: Pryor Cashman LLP By: Judith L. Poller, Esq. & Mark S. Randall, Esq.
Counsel for Defendant: Cohen Clair Lans Greifer & Simpson LLP By: Shannon Rogers Simpson, Esq., David V. Sanchez, Esq., & Jenna R. Weinblatt, Esq.
Counsel for the Children: Paul Eric Rudder, Attorney At Law By: Paul E. Rudder, Esq.
Ariel D. Chesler, J.
BACKGROUND
In this contentious matrimonial action, the Court is asked to confront a request for exclusive use of the marital apartment, which has been described by Judge Richard A. Dollinger as an "[a]ugean challenge" (see L.M.L. v H.T.N., 57 Misc.3d 1207 (A) [Sup Ct, Monroe Cnty 2017]). Perhaps the image of Hercules performing difficult feats is appropriate here because wrapped up in these requests are all the intersecting concerns in the case: the best interests of the children, parental access, a zero-tolerance public policy regarding domestic violence in all its forms, the need to protect persons and property, the property rights of the parties, the financial circumstances of the parties, and due process.
The parties in this case enjoyed a lavish lifestyle enabled by both the Plaintiff-Father, J.M. (the Father) being the primary breadwinner and Defendant-Mother, D.E.S. (the Mother) being a homemaker and primary caretaker to the parties' children.
The marital apartment is a three-bedroom, 1,800 square foot apartment in a luxury, new construction building in the Lincoln Center area of the Upper West Side. The apartment has floor to ceiling windows and views of the Hudson River. The building has amenities such as a large gym, rock climbing wall, bowling alley, and beautiful courtyard. During the marriage, the family regularly dined out with family and friends at trendy, expensive restaurants, took spectacular vacations, drove a Range Rover SUV, owned a luxury boat that was docked by Chelsea Piers, attended many formal charity galas and donated tens of thousands of dollars a year to charitable causes through the family's charitable foundation. They also stayed at 5-star hotels around the world, vacationed on private islands, and flew on private planes.
They also own another apartment in the very same luxury building, and the Mother believes that in 2021 the Father's taxable income was approximately $1,400,000 and that, based on information the Father provided to her, in the same year they had a net worth in the range of $50 to $60 million, with liquid assets of $30 million. According to the Father, his current net worth is "$12,878,755 + TBD."
In December 2022, the Father was struck by illness which dislodged him from the marital apartment for almost an entire year. During the Father's lengthy hospitalization, the Mother resided by herself with the Children in the home and the Father commenced a divorce action. In September and October 2023, while still hospitalized, the Father filed two motions seeking certain parental access with the children and various relief relating to custodial decision making. The motions also sought various financial relief including setting certain amounts for temporary support. Finally, the motions made demands relating to his claims that the Mother had wrongly taken certain business documents and hard drives belonging to him which were located in the two apartments.
On or around November 2023, while the Father was still hospitalized, the parties entered into a stipulation whereby the two motions filed by the Father were withdrawn without prejudice. The stipulation also set forth that neither party would file subsequent motions absent emergency for sixty (60) days. The Mother explains that this was intended to "bring the temperature down" and to enable the parties to make efforts to co-parent.
Although the mother inquired about whether there was a plan to discharge the Father from the hospital, no such plans were disclosed. However, on the very same day they executed the stipulation, the Father reached out to the Mother and advised he would be coming home in just a few hours. He then returned home and sought to reintegrate into the marital apartment. He did so without seeking Court permission, guidance or approval. This did not come without friction and eventually spurred the instant motion sequences.
Since the Father's return from the hospital, he has not returned to work and has alleged he is struggling to find work. The Mother on the other hand alleges he is not looking for work and that she is making active efforts to make herself employable, including obtaining her real estate license.
The parties have been residing primarily in two separate residences as they are in possession of two apartments in the same building. Currently, they are under a nesting arrangement which the Court permitted on a temporary basis wherein the parties swap where they sleep based on who has overnight parenting time, with the parent who has overnight parenting time sleeping with the children in the marital apartment.
DISCUSSION
The Mother moved by order to show cause under motion sequence 003 for, inter alia, counsel fees, expert fees, interim custody, and exclusive use and occupancy of the marital apartment. The Father then moved by order to show cause under motion sequence 004 for, inter alia, interim custody and parenting time, enjoining and directing the wife involving various acts, and modifying the Automatic orders.
The Court held oral arguments, with input from the children's attorney and the family's social worker, on these competing motion sequences and issued various interim orders during the pendency of these sequences.
Exclusive Use & Occupancy
Domestic Relations Law section 234 empowers this court to award exclusive use and occupancy pendente lite. It provides,
In any action for divorce, for a separation, for an annulment or to declare the nullity of a void marriage, the court may (1) determine any question as to the title to property arising between the parties, and (2) make such direction, between the parties, concerning the possession of property, as in the court's discretion justice requires having regard to the circumstances of the case and of the respective parties. Such direction may be made in the final judgment, or by one or more orders from time to time before or subsequent to final judgment, or by both such order or orders and final judgment. (Id.).
The rules for pendente lite exclusive use and occupancy of a marital residence are well established. "Exclusive occupancy of a marital residence by one party, pendente lite, is warranted: (1) when needed to protect the safety of persons or property; or (2) when the nonmovant spouse has voluntarily established an alternative residence and that spouse's return to the marital residence would cause domestic strife." (Kenner v. Kenner, 13 A.D.3d 52, 53 [1st Dept 2004]). Critically, the "standard for granting such relief should not be so inflexible as to exclude consideration of any other circumstances which would otherwise warrant judicial intervention" (Delli Venneri v. Delli Venneri, 120 A.D.2d 238 [1st Dept 1986]).
In L.M.L, the Court offered a thorough and contemporaneous analysis of the state of the legal authorities on pendente lite exclusive use and occupancy, and more precisely, what suffices to be sufficient "domestic strife." (Id.). Justice Dollinger explained,
In this court's view, [...] other cases cited above reflect an outdated notion that continual verbal abuse and sharply-worded verbal fights are simply "petty harassments" that are "part and parcel of actions for divorce" and ignore persuasive social science evidence that domestic turmoil can severely damage the lives of children. In that regard, more recent judicial pronouncements have recognized the dangers posed to children by unrestrained verbal assaults in the home. These recent cases also highlight the continuing debate over the quantum of proof to justify "exclusive use" during pendency. (L.M.L., supra at *5).
In this Court's view, any analysis of an exclusive use request must consider not only the impacts of conflict on children, but also the right of spouses to be free from not only physical violence and/or threats of physical harm, as well as harassment, coercive control and other forms of domestic violence. In this regard, the Court wholeheartedly concurs with Justice Dollinger's opinion that our modern jurisprudence has concluded that it is unnecessary to demonstrate physical violence to justify an award of exclusive use, and further that even minimal levels of domestic discord can severely impact children.
In this matter, the Mother and the Father have equally lodged complaints that one is stealing from the other. Thus, it appears before this Court that the current living situation does present an indisputable showing of danger to property in the form of stealing.
The Court notes the alleged theft, by both parties, involves sensitive business and litigation documents and "hundreds of thousands of dollars" of jewelry and designer bags. Indeed, it appears that both parties believe the other is committing felonious levels of theft and cognizable family offenses against the other. (See Penal Law § 115.40[1]; FCA § 812). This level of risk of harm to property is exactly what the Statute functions to alleviate. The parties living together clearly is creating a toxic environment to the point where allegedly over hundreds of thousands of dollars of both of the parties' property is subject to theft by the other. Indeed, if there is any doubt as to this theft issue, the Court notes that it has been an issue raised before this Court even prior to this motion sequence. Whether the Court finds that the Father or the Mother, or both, to be telling the truth, the fact remains that both parties in effect agree that theft is occurring and therefore there is a serious risk of harm to property in the residence.
Regarding domestic strife, there are allegations on both sides of strife instigated by the other. This court also notes that the mutual allegations of stealing further demonstrate a mutual acknowledgment of domestic strife by the parties.
The Mother has specifically alleged, inter alia, that (1) the Father has placed cameras around the marital apartment; (2) the Father has domineered the primary bedroom; (3) the Father ridicules the Mother in the presence of the Children; (4) the Father has established "rules" that "must" be followed; and (5) the Father and Mother getting in verbal altercations. According to the mother, one of their children has asked the Father "why are you being so mean to mommy?" Moreover, she alleges that the Father has tried to pressure her through her friends and admitted in counseling that he purposely bothers her late at night when she is overtired. Finally, the Mother stresses that the Father has also exerted financial control by refusing to pay for certain things, setting a $6,500 limit on her credit card (half their normal amount of spending), advising the parking garage attendant she was not allowed to use their car without his authorization, and allowing their private health insurance to lapse.
The Father on the other hand denies much of this conduct. However, he does allege the Mother degrades him in the presence of the Children. In addition to issues of verbal ridicule in the presence of the Children, this Court is particularly alarmed by the use of surveillance that is occurring in this home. The Mother alleges both of the parties' apartments are wired with cameras. The Father admits that these cameras are up, at least to the extent that they are in the primary marital apartment. The Father argues that this is simply not sufficient to meet the test based upon the case law on the issue of domestic strife.
Here, there is no need for a hearing as there are sufficient undisputed facts and circumstances alleged by both parties that establish strife and an untenable home environment for the parties and children. Not finding strife here, "erodes the child's sense of home life. By denying this application and doing nothing - sending the parties back to the neutral corner so to speak in the home - sends the wrong message to the parents and the children and, in this court's view, sends message contrary to the direction of the state Legislature." (L.M.L., at *25). The acts of surveillance, verbal toxicity, harassment, coercive and financial control, and serious theft run contrary to the principles the Legislature endorsed by enacting DRL § 234. The constant act of surveillance intrudes greatly on the Mother's privacy. Likewise, it intrudes upon the Children's privacy with their Mother during her parenting time, implicating the same concerns Justice Dollinger raised. Both parents are entitled to privacy when they are exercising their parenting time. The act of surveillance is an affront to such privacy and undisputed evidence of strife.
Given the clear conflict, accusations and strife that were present and raised to the Court in September and October of 2023, it is outrageous that the Father suddenly returned to the marital home without seeking court permission, an agreement of the parties, or even the guidance of a professional regarding how it might impact the children. That he then commandeered the primary bedroom, and attempted to control every aspect of the living environment and the Mother's daily life is equally stunning.
Living in this type of home environment is unquestionably not in the best interests of the children and it will not be condoned by this Court or allowed to continue. Further, there can be no tolerance for any types of domestic violence, including coercive, financial control and non-physical conduct occurring here. (See Anonymous v Anonymous, 2024 NY Slip Op 51208[U], at n. 3 [Sup Ct, NY Cnty July 16, 2024], stay denied sub nom, Roberson-Fisch v Fisch, Mot. No. 2024-03807 [1st Dept September 19, 2024][Note free version available online at: https://www.nycourts.gov/courts/ad1/calendar/Motions_Word/2024/09_Sep/19/PDF/Roberson-Fisch%20v%20Fisch%20(M-3807).pdf ]; S.L. v D.E., 83 Misc.3d 1224 [A], at *10 [Sup Ct, NY Cnty June 26, 2024]["Financial abuse is domestic violence; even without a bruise the harm is still potent, and this Court must not turn a blind eye to such conduct."]; Estate of Aisha R., 2023 NYLJ LEXIS 1389, at *9-10 [Fam Ct, Kings Cnty 2023]).
Accordingly, based upon the mutual allegations of verbal altercations in the presence of the Children, the mutual allegations of felony-level theft, the financial and coercive control, harassment, and the undisputed surveillance of at least the marital apartment "[r]egardless of the party at fault," there is strife in this home. (L.M.L., supra at *7.).
Unlike the situation in other cases, including L.M.L., here, there is an alternative residence just three floors below the marital residence, where the Mother lived with the Children alone while the Father was in the hospital for a year.
The Father contends that he has not established an alternative residence. The Mother argues the opposite and states that "[s]ince returning to the Marital Residence, [the Father] has fully utilized the Second Apartment. He has all his medical items stored there, he uses the office every day, the fridge is stocked, and multiple cameras are set up - which only he can view the footage of."
For guidance, this Court initially looks to the First Department's rationale in Delli Venneri which explained exactly what this alternative residence test is searching for. (Delli Venneri v Delli Venneri, 20 A.D.2d 238 [1st Dept 1986]). In Delli, the Court reasoned that the Wife was entitled to pendente lite exclusive use based upon the presence of marital strife and the fact that the husband "will not suffer the dislocation that a spouse who still resides in the marital abode will suffer." (Id. at 241). Indeed, there is sufficient evidence here that the Father established a residence in the secondary apartment.
Regardless, the parties are fortunate enough to have two residences which are in the same building. Here it is true that the Father did not voluntarily abandon the marital apartment in the first instance; rather the circumstances were forced upon him by medical emergencies. However, the Court cannot ignore the large amount of time the marital apartment functioned as a home for just the Mother and the Children. (See Delli, supra at 241["We cannot blind ourselves to the potential disruptive, if not dangerous consequences, of the husband's return to the apartment after such a lengthy hiatus."]; G.K. v S.T., 2024 NY Slip Op 50880[U] *19 [Sup Ct, NY Cnty 2024][Waterman-Marshall, J.]; C.M. v E.M., 82 Misc.3d 198, 224 [Sup Ct, Nassau Cnty 2023][Dane, J.]["Whether or not defendant voluntarily vacated [...] the fact remains that he has established an alternative residence."]).
Indeed, such a narrow reading of the case law, as offered by the Father, would be inappropriate given the clear language to the contrary from the appellate courts that; rather than be read narrowly, the rules for pendente lite exclusive use should be cognizant of the specific circumstances of the family. (See Delli, supra at 240 ["While that is undoubtedly the general rule, the standard for granting such relief should not be so inflexible as to exclude consideration of any other circumstances which would otherwise warrant judicial intervention."]; Grogg v Grogg, 152 A.D.2d 802, 803 [3d Dept 1989]["However, the standard for granting exclusive use and occupancy is not so inflexible as to exclude circumstances warranting judicial intervention."]).
As was aptly stated in L.M.L, "[t]he mere suggestion that 'exclusive use' should hinge, in any fashion, on the "voluntary establishment of an alternative residence" also suggests that preventing domestic violence may depend, in part, on the untenable notion that the convenience of one party's ability to secure short-term housing away from the home is somehow more important than the emotional security of the children" (L.M.L., supra at *10). In sum, there can be no doubt that the Father had established a residence in the hospital and then in the secondary apartment, and this Court will not prioritize the Father's desire to return to the marital residence over the security and safety of the Mother and children.
It is further noted that there are in fact no concerns about financial constraints or major dislocation as the Father can easily reside in the secondary apartment in the same building, which also makes it convenient for exchanges of the children and for him to have parental access. Relatedly, there can be no dispute that the Mother was the primary and sole functioning parent for the year the Father was hospitalized, had de facto exclusive use of the home, and that was in fact the status quo when this litigation commenced.
Accordingly, this Court finds that the Father has established alternative residence because of the unique facts of this case, including but not limited to (1) the parties owning two apartments in the same building; (2) the long duration of time the Mother resided by herself with the Children in the marital apartment; (3) the fact that the parties have already had time living in the second apartment during the interim nesting period; and notably, (4) the indisputable fact that with an award of pendente lite exclusive use of the marital apartment to the Wife, "the husband in this case will not suffer [] dislocation." (Id.).
This is a case which presents circumstances which absolutely require judicial intervention and make an award of pendente lite exclusive use and occupancy appropriate. Therefore, the Mother's request for exclusive use and occupancy of the marital apartment is GRANTED. In accordance with this award, the Court also awards the Father exclusive use and occupancy of the secondary apartment.
Additionally, this Court is directing that all surveillance and camera equipment in the marital apartment be removed. If requested or desired by the Mother, she may retain an expert at the Father's expense to sweep the marital residence for cameras and other surveillance devices. The Father may maintain a camera system in the secondary apartment as he indicates he needs the same for medical monitoring.
In addition, the Mother is granted exclusive use of the parties' automobile during her parenting time.
Custody & Parenting Time
"It is well established that determinations affecting custody should be made following a full evidentiary hearing, not on the basis of conflicting allegations." (Smith v. Brown, 272 A.D.2d 993, 993 [4d Dept 2000]; see e.g., Matter of Martin R.G. v Ofelia G.O., 24 A.D.3d 305 [1st Dept 2005]). Here, there are conflicting allegations as to almost every claim raised by either party. Accordingly, this Court cannot determine custody at this time and thus refers that matter to trial.
As to parenting time, the ultimate resolution of parenting time cannot be determined until after a trial; however, in the interim, the Court continues its current orders and maintains the ability to expand or retract the parenting time schedules of either parent based upon the best interests of the children. (See DRL § 240[1]; Eschbach v. Eschbach, 56 N.Y.2d 167, 171 [1986]["Any court in considering questions of child custody must make every effort to determine 'what is for the best interest of the child, and what will best promote its welfare and happiness'."] citing, DRL § 70).
Accordingly, the parties' requests as they relate to custody and parenting time are referred to trial for ultimate resolution. However, as noted supra, the award of exclusive use affects parenting time, and the Court recognizes that the Mother has been the primary parent. In July 2024, this Court issued an interim nesting schedule pursuant to which the Plaintiff has alternate weekends from Friday to Monday, every Wednesday overnight, and alternate Tuesday dinner visits. Although the parties will no longer be nesting, this same general schedule shall continue with Plaintiff's parenting time taking place in the secondary arpartment and Defendant's time taking place in primary apartment. Because the children will once again have a primary home with their Mother as was the case for an entire year before the Father suddenly returned to the home, the Court vacates the portion of the order granting the Father alternate Tuesday dinner visits and directs that the Father's alternate weekends shall end on Sunday evening at 6 PM.
The Custody Forensic
The Mother seeks the appointment of a forensic custody evaluator. The Father "does not object" but argues the cost and time requirements for such a forensic render such an award "prohibitive and unnecessary."
A parent is not automatically entitled to the appointment of a forensic custody evaluator when litigating issues of custody and parenting time. (See Matter of Pedro C. v. Michelle R., 220 A.D.3d 561, 562 [1st Dept 2023]). Indeed, it is well-established that "the decision whether to obtain forensic evaluations to assist in reaching a custody determination rests within the sound discretion of the trial court." (Matter of James Joseph M. v. Rosana R., 32 A.D.3d 725, 727 [1st Dept 2006]; Matter of Salamone-Finchum v. McDevitt, 28 A.D.3d 670, 671 [2d Dept 2006]; Nunnery v. Nunnery, 275 A.D.2d 986, 987 [4d Dept 2000]). In order for the Court to justify the immense cost and time-consuming exercise of a forensic custody evaluation there has to be a showing of a material question of fact that necessitates such an award. (See Mascoli v. Mascoli, 132 A.D.2d 653, 654 [2d Dept 1987]["The record contains no evidence that the parties or child displayed emotional problems which would make the assistance of psychological experts necessary in order to determine whether to change custody."]; Matter of Luis, 18 Misc.3d 650, 653 [Fam Ct, Kings Cnty 2007][Hepner, J.]["After analyzing the circumstances of the parties and noting the absence of particular issues that might otherwise warrant a more in-depth inquiry, the court concluded that a forensic evaluation was not essential to make the custody determination herein since neither the parties nor the child displayed emotional problems that would render the assistance of a court-appointed psychologist necessary there are no factual allegations that warrant ordering a forensic evaluation."]; see also, Matter of Hernandez v. Rodriguez, 42 A.D.3d 498, 499 [2d Dept 2007]).
Here, the Mother argues that a custody forensic would be beneficial because of the "plaintiff's erratic behavior, his verbal and mental abuse, his return to the Marital Residence with only hours' notice after a one-year absence, his twenty-four-hour surveillance of the family, and his remarkable recovery from his 'death bed'." Here, the allegations raised by the Mother do not raise an issue of fact as to the emotional or psychological state of either parent that would necessitate the expense and delay caused because of the appointment of a forensic. Her concerns with the Father's recovery are better opined on by an expert in that medical issue, not psychology and parenting as is the case with a custody forensic. Indeed, this Court has had occasion to hear this case for some time and there have been many issues raised; none of which have required expert psychological input.
The Court notes three important considerations relevant in awarding the appointment of a custody forensic that demonstrate such an appointment is not appropriate in this matter.
First, custody forensics are extremely expensive. Here, it is beyond dispute the Father lost his job and he has explicitly raised concern on the issue of expenses. The Court cannot in equity justify such an enormous expense unless there is a sufficient factual basis for such - the factual basis here is wholly insufficient.
Second, custody forensics almost invariably delay custody proceedings as they take very commonly well over six to eight months to complete. Indeed, while the Court and parties wait for the completion of the forensic evaluation. time passes and circumstances change which has the potential to minimize the evaluation's probative value. Therefore, the delay must be justified by factual circumstances that show the children's best interests require forensic input and outweigh the harm inherent in the protraction of custody litigation. Here, that is simply not the case.
Third, the forensic evaluators approved for use by this Court are limited and in high demand. As a matter of judicial economy, this Court cannot function as a rubber stamp for forensic evaluators given their scarcity and the already immensely high demand they have from the court. Appointing a forensic on these facts would not be proper or in the interests of justice and judicial economy.
The Court also considers, in arriving at this decision, the fact that the parties have an agreed-upon family social worker already; thus, showing further that there is not a need for additional expert intervention in the children's lives.
Accordingly, the Mother's request for the appointment of a custody forensic evaluator is DENIED without prejudice. The Mother has leave to request a custody forensic again if issues of fact arise that require such expertise.
Fees, Pendente Lite Support, and Other Financial Relief
The Mother seeks the financial relief of: (1) an award of pendente lite unallocated support in the amount of $12,500.00 per month; (2) an award of pendente lite counsel fees and expert fees; and (3) directing plaintiff to pay all the carrying costs on the marital residence.
The Father argues in the first instance that the pre-marital status quo argued by the Mother "could not be farther from the truth." Further, he asserts he cannot meet the status quo expenses sought by the Mother because the "days of [his] success have long passed." He concludes that his income is de minimis if anything based upon his asserted negative net worth in excess of three million dollars.
The Court notes that both parties have not provided the Court with sufficient proof to ascertain incomes for either parent. As it relates to the Mother, it is clear she was not working during the marriage, although it does appear she has made good efforts to attain employment. With regards to the Father, his Net Worth Statement is utterly opaque and convoluted. It is far too astray from the standard form and voluminous. The Court simply is incapable, at this juncture with the proof available, to ascertain incomes. The Court is directing that within fourteen days of this Order the Father refile a Net Worth Statement using the standard form: (available at: https://www.nycourts.gov/LegacyPDFS/forms/matrimonial/NetWorthStatementFillable.pdf)
Notwithstanding, in these scenarios, where Courts cannot ascertain income, they are instructed to look to the needs of the family to determine the appropriate support award. (See Kay v Kay, 37 N.Y.2d 632, 636 [1975][Superseded by statute on other grounds]; Orenstein v Orenstein, 26 A.D.2d 928, Matter of McGoldrick v Gebaide, 188 A.D.3d 885, 886 [2d Dept 2020]; Mayer v Mayer, 291 A.D.2d 384, 385 [2d Dept 2002]). Indeed, most important here is that the Court must arrive at an award that allows the Children's needs to be met.
Here, the parties indisputably had a marital lifestyle that was lavish and extravagant. The Father claims the contrary, but his debts tell a different story. He also further admits that the parties did in fact live a lifestyle that permitted them to have a yacht. Additionally, the parties own two residences in the same building - both of which (based upon what has been presented to this court) are being paid for. Furthermore, the debt amassed indeed confirms his wealth as there is no logical basis to conclude that such an amount of debt could have been incurred without some level of corresponding wealth. Indeed, if there is any doubt, the Father literally retained and paid for an expert to complete his unintelligible Net Worth Statement - the Court must wonder with such little asserted income how is it that the Father found the sums to hire an expert to demonstrate that he in essence has no money. The Court cannot accept this position which, in effect, would cripple the Mother and the Children's ability to maintain any modicum of the status quo.
Thus, while incomes cannot be ascertained due to the Father's own doing in presenting convoluted financials, it would be nothing short of a miscarriage of justice to use this as a basis to not award support at this time. The instant award is made on an interim basis and is expressly subject to recalculation upon the Father's decision to submit financials to this Court that are not obfuscated and actually offer an income imputable to him.
Much of the Mother's Net Worth Statement reveals she has been in the dark as to the parties' finances as it is littered with unknowns. However, she asserts the family's monthly expenses are in excess of $36,000.00. Among these costs are $4,200 for food, $2,800 for clothing, and $6,767 for recreational costs.
As it stands, the Father historically covered all the carrying costs for the marital residence and the parties' other expenses such as vehicle insurance. The Court hereby directs, consistent with the marital status quo, that the Father continue to pay such sums including but not limited to all carrying costs and utilities on the marital residence, all insurance costs, all vehicle costs, and all add-on costs for the children, including tuition, tutoring, unreimbursed medical, extracurricular activities, and camp. Likewise, based on the evidence presented to the Court, the needs of the parties demonstrate an award of interim unallocated support in the amount of $10,000.00 per month to be appropriate. However, this $10,000.00 award is subject to recalculation based upon a subsequent application by the Father after he has provided competent financials. Accordingly, the Mother's requests for unallocated support and a direction that the husband continue paying carrying costs on the marital estate are GRANTED to the extent detailed herein.
Additionally, the Court is appalled by the Father's decision to discontinue private health insurance and avail himself (wrongfully and likely fraudulently) to public health insurance. The Father shall forthwith reinstate the parties on a private health insurance plan that he shall thereafter bare 100% of the costs for. For clarity, such a plan shall cover the Wife and the Children; the Husband may elect to continue his misuse of Medicaid if he desires. In a similar vein, the Father discontinued the registration on the parties' vehicle that the Mother used to transport the Children. The Father seeks permission to uninsure the vehicle and that request is DENIED. To the contrary, the Father is directed to forthwith reinstate the registration and bring all costs due and owing on the vehicle current so that it may be used by the Mother (as was the marital status quo) to transport the Children or for other reasonable needs she may have.
The Mother requests $150,0000 in interim counsel fees. This request is supported by an affirmation from counsel, a copy of her retainer and invoices. DRL § 237 makes presumptive an award of interim counsel fees to the less monied spouse. There is no question that the Father has always been and is currently the monied spouse despite his claims regarding his current financial condition. Indeed, while the Mother describes an incredibly lavish lifestyle during the marriage and the Father earning 1 million dollars per year, she has not had an income of her own for many years.
This presumption of an award of fees reflects the strong policy concern of ensuring "that marital litigation is shaped not by the power of the bankroll but by the power of the evidence" (Charpie v Charpie, 271 A.D.2d 169, 170 [1st Dept 2000]). It is therefore especially important to award counsel fees for the non-monied spouse when there is a substantial discrepancy between the incomes of the parties (id. at 171). However, in addition to looking at the incomes of the parties, "in exercising its discretionary power to award counsel fees, a court should review... all the other circumstances of the case, which may include the relative merit of the parties' positions." (DeCabrera v Cabrera-Rosete, 70 N.Y.2d 879, 881 [1987]).
In considering all the circumstances of this case, including the merits of these motions, in its discretion the Court awards $100,000 in interim counsel fees to the Mother. The Father shall pay such fees from his income or separate assets directly to the Mother's counsel within 30 days of this order.
The Mother's request for expert fees is unsupported by an affirmation from a proposed expert, does not specify an amount expended or expected for the expert, and does not specify the type of expert or analysis that will be done. Accordingly, the request for expert fees is DENIED without prejudice.
Other Relief
The Mother's request for an Attorney for the Child is moot as an order awarding same has been issued.
The Court also continues all interim relief granted on the Father's Order to Show Cause.
The Father requests a directive that the Mother utilize the Goldman Sachs accounting ending in XXXX to contribute to the family's living costs. He argues the Wife is essentially stowing away more than $375,000.00 when she could be using those funds to assist with family living expenses given the family's current financial concerns. The Mother opposes such a request and argues such spending sourcing was not the marital status quo. The Court denies the Father's request without prejudice because spending from this account was not the marital status quo and there is insufficient evidence before this Court to support a directive that would deviate from the marital status quo.
As it relates to both parties' allegations of theft, they are referred to trial as they are improper for adjudication absent a hearing where the issues can be properly explored, and credibility robustly examined.
This constitutes a decision and order of this Court.