Opinion
Index No. 365337/2022
11-08-2023
K.L., Plaintiff, v. J.B., Defendant.
Counsel for Plaintiff Lee Anav Chung White Kim Ruger & Richter LLP By: Judith White, Esq. Counsel for Defendant Helene Carvallo By: Helene Carvallo, Esq. Green Kaminer Min & Rockmore LLP By: Richard Min, Esq
Unpublished Opinion
MOTION DECISION
Counsel for Plaintiff Lee Anav Chung White Kim Ruger & Richter LLP By: Judith White, Esq.
Counsel for Defendant Helene Carvallo By: Helene Carvallo, Esq.
Green Kaminer Min & Rockmore LLP By: Richard Min, Esq
Ariel D. Chesler, J.
The following e-filed documents, listed by NYSCEF document number (Motion 004) 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198 were read on this motion to/for CHILD SUPPORT.
Upon the foregoing documents, it is
Introduction
In this motion sequence, Defendant husband seeks to order the sale of the marital residence in New York and to set certain amounts for temporary maintenance and child support. Plaintiff wife cross-moves to impute $500,000 in income to Plaintiff and set support accordingly, and for an award of counsel fees.
Background:
The parties were married in October 2008 and this action was commenced in July 2022. Plaintiff is 47 years old and Defendant is 48 years old. Plaintiff is an artist and has not earned significant income for years. Defendant is a banker and was the primary wage earner during the marriage. There are two children of the marriage, born in 2010 and 2011, who are currently aged 13 and 12.
Plaintiff, who was born in Seoul, South Korea is a South Korean citizen and Defendant, who was born in Paris, France is a French citizen. At some point in or around 2006, Plaintiff was granted a Green Card. However, she may never have "activated" it and it is unclear if, based on various facts in the years that followed, she has abandoned her legal permanent resident status.
The parties met in Malaysia in 2006 and began living together in Singapore in 2008. They purchased an apartment together there. The children were both born in Singapore and hold French citizenship.
In 2019, the parties and children moved to New York. Specifically, in 2018 Plaintiff had been accepted to a Master of Fine Arts program and wanted to pursue a career as a professional artist. Defendant agreed to move to New York and requested an intercompany transfer with his bank, [Redacted], to New York. Ultimately, this arrangement was made and Defendant applied for and obtained L-1 and L-2 dependent visas for himself and the Plaintiff and children respectively, which is how they entered and lawfully remained in the United States. The parties sold their Singapore apartment and used the equity to purchase the marital apartment in downtown Manhattan.
In March 2021, however, Defendant was terminated from his position at [Redacted]. Although he applied to various other positions, he was unsuccessful. His termination also had ramifications for the parties in terms of their being able to stay in the United States. The parties thus had discussions about returning to Singapore or relocating elsewhere. In the meantime, Plaintiff applied for a replacement Green Card, and Defendant applied for an E-2 visa in connection with a potential position Defendant would have running a friend's company.
By the summer of 2022, nothing had changed. Plaintiff had not obtained a replacement Green Card and Defendant's E-2 visa application was unsuccessful. Following an emergency hearing in October 2022, and based on serious risks to the children based on their lack of proper legal status in this country, Defendant was granted temporary residential custody of the children and permitted to relocate with them to Singapore pending further proceedings in this Court.
Since October 2022, Defendant has been the primary parent, and has been entirely responsibly for all of the costs associated with the children, including their housing, food, clothing, and their significant educational costs in Singapore. Defendant currently works for [Redacted], earning a base salary of $280,000 and expects to receive a bonus for 2023 in March 2024. Plaintiff continues to live in the marital apartment in Manhattan by herself and is hoping to earn income from her art in the near future.
Sale of the residence:
Defendant seeks an order directing the sale of the marital residence so as to reduce the parties' monthly costs, which he says he can no longer maintain. Specifically, the monthly carrying cost for the apartment is $6,007. He also notes that the marital residence has approximately $1.5 million in equity which could be placed in an interest-bearing account.
Plaintiff opposes the sale of the home and intends for the children to return to live there. She also finds no financial benefit in selling the home since she would then have to rent a home, and pay for moving and other associated costs. Plaintiff also expresses concern that Defendant would attempt to use the proceeds from any sale to pay the family's monthly expenses, rather than his salary.
There is no allegation that the marital apartment is under threat of foreclosure or that there is currently any risk to this marital asset. In such circumstances, Defendant's concerns are premature and there is no basis to order the sale of this jointly owned asset (see Kahn v. Kahn, 43 N.Y.2d 203 [1997]).
Temporary support:
Pursuant to DRL § 236(B)(5-a), courts must arrive at a presumptive award of temporary maintenance by first determining the parties' incomes, based on the parties' most recently filed tax returns and in accordance with the definition of income set forth in the Child Support Standards Act (see DRL § 240[1-b][b][5]).
As noted, it is undisputed that Plaintiff has not earned money for some years as she has obtained degrees and worked on becoming a professional artist. Defendant has worked in banking and has been the sole wage earner for the family. The parties' 2022 joint taxes show an adjusted gross income but this is clearly an anomaly and not representative of the historical income for this family. Indeed, as Defendant explains, he had to use marital savings to continue the marital lifestyle during the period after he was terminated and was unemployed.
The parties' 2021 joint taxes show adjusted gross income of $516,690. Defendant suggests that the Court use his current base income of $280,000 to set support, even though he expects to receive a bonus. On the other hand, Plaintiff argues that the Court should impute $500,000 to Defendant based on his historical earnings and earning capacity.
There is no basis to impute income to Plaintiff. As Defendant notes, at the beginning of the marriage in 2007, Plaintiff was earning approximately $8,000 per month but since about 2009, "she focuses on her art, but has never generated substantial income."
Accordingly, based on the historical earnings and Plaintiff's earning capacity, for purposes of calculating support, the Court will use the sum of $500,000 for Defendant and $0 for Plaintiff. Using such sums results in a presumptive award of $5,075 in monthly temporary maintenance. However, the Court also considers the very comfortable marital lifestyle, which included significant travel, as well as the fact that Plaintiff has not worked since 2008 and just earned her MFA in 2022. The Court also considers that because the parties had been maintaining the apartment in Singapore the family's housing expenses have not changed.
On the other hand, Defendant now has to shoulder nearly $80,000 per year for the children's schooling, while those costs did not exist in New York as the children's tuition was free or ultimately covered by the DOE. In addition, Defendant has to cover various costs for the children in Singapore including a nanny, transportation, and speech therapy for one of the children who has special needs. Defendant is also solely responsible for the children's basic needs such as food and clothing. Defendant also describes unsustainable levels of spending by Plaintiff on the family credit cards totaling around $9,000 per month.
Based on a consideration of all the factors, the Court will remove the cap and consider all income, which would result in monthly maintenance of $11,549.78.
However, the Court must also consider an award of child support. In awarding temporary child support, the Court can but is not required to consider the CSSA guidelines (see DRL 240 [1-b][c]; Rubin v. Salla, 78 A.D.3d 504, 505 [1st Dept 2010]). The presumptive amount of basic child support obtained by calculating the statutory percentage for 2 children (25%) of the combined parental income cap of $163,000 results in child support of $40,750 per year. The Plaintiff's pro rata share of that sum is $12,225 or $1,018.75 per month.
However, considering the same factors, and in particular the significant additional expenses for the children now that they reside in Singapore, the Court will similarly remove the cap and consider child support on all the income, which would result in a child support award of $2,887.44 per month. Under this scenario, Defendant would be responsible for 70% and Plaintiff 30% of add-ons for the children, such as their private schools in Singapore and childcare expenses.
Thus, if the Court used the sums of $11,549.78 and $2,887.44 for the maintenance and child support awards respectively, it would result in a net payment of $8,662.33 from Defendant to Plaintiff.
Yet, the carrying costs on the marital apartment amount to $6,007 each month, which would leave Plaintiff with only approximately $2,600 for all her remaining expenses. Of course, there are certain expenses such as $1,300 per month for an art studio that may no longer be necessary or appropriate since Plaintiff has use of the entire marital apartment for herself. Plaintiff also lists various expenses on her statement of net worth, such as clothes for the children, that she does not actually incur as they live exclusively with Defendant.
Upon consideration of all the factors, the Court directs that Defendant continue to pay the carrying costs on the marital residence in the amount of $6,007 per month and to pay an additional $3,500 in direct support to Plaintiff each month. However, this means that Plaintiff can no longer get additional support above the amount awarded by charging her personal expenses on credit cards paid by Defendant. Separately, Defendant is directed to maintain the status quo by paying 100% of the children's add-on expenses, including childcare, education, unreimbursed medical, and extracurricular activities.
Counsel fees:
In matrimonial actions, the Court has discretion to direct one party to pay counsel fees for the opposing party (Domestic Relations Law ["DRL"] § 237). DRL § 237 further creates a rebuttable presumption that counsel fees shall be awarded to the non-monied spouse. This presumption 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 this case, there is no question that the Defendant is the monied spouse and has a successful career in banking, and that Plaintiff has no income and has not worked for a number of years. Nor does Plaintiff have access to any separate or marital assets that could be utilized to pay her counsel fees.
There is no indication that Defendant prolonged the litigation or attempted to use his income to drive the litigation. To the contrary, the Court has spent much of its energy dealing with Plaintiff's hopeful but unrealistic and inaccurate assessment of her own and, more importantly, the children's immigration status and the risks associated with remaining in the United States without proper status.
Plaintiff asks for an award of $50,000 in counsel fees. However, it is undisputed that she has already used a marital credit card to charge $25,000 to pay her counsel and that Defendant will have to pay the balance on the card.
Further, the Court also considers the circumstances of this case and the merits of the parties' positions. In this regard, the Defendant's position on finances is not in accord with the status quo of the marriage, although the Court recognizes he now has the challenge of maintaining two homes, and carrying all the financial burden of this family. Thus, having considered the various factors, the Defendant is directed to pay $35,000 as and for an award of interim counsel fees which are subject to reallocation at trial.
Accordingly it is;
ORDERED, that Defendant shall continue to pay the carrying costs on the marital residence in the amount of $6,007 per month and pay an additional $3,500 in direct support to Plaintiff each month commencing on November 15, 2023 and on the 15th of every month thereafter; and it is further
ORDERED that Defendant shall continue to pay 100% of the children's add-on expenses; and it is further
ORDERED, that Defendant is directed to pay $35,000 as and for an award of interim counsel fees directly to Plaintiff's counsel within 30 days of this Order, which is subject to reallocation at trial; and it is further
ORDERED, that Plaintiff may no longer charge her personal expenses on credit cards paid by Defendant.
This constitutes the Decision and Order of this Court.