Opinion
Index No. 55761/2021
12-21-2022
LGF, Plaintiff, v. RF, Defendant.
Counsel for the Plaintiff: Lisa Edith Giovinazzo, Esq. LAW OFFICES OF LISA GIOVINAZZO Counsel for the Defendant: Maria M. Schwartz, Esq. MARIA SCHWARTZ, PC Counsel for the Children: Melissa Johanna Rutigliano, Esq. Murgolo & Rutigliano, Attorneys at Law, LLP
Unpublished Opinion
Counsel for the Plaintiff:
Lisa Edith Giovinazzo, Esq.
LAW OFFICES OF LISA GIOVINAZZO
Counsel for the Defendant:
Maria M. Schwartz, Esq.
MARIA SCHWARTZ, PC
Counsel for the Children:
Melissa Johanna Rutigliano, Esq.
Murgolo & Rutigliano, Attorneys at Law, LLP
Ronald Castorina, Jr., J.
HON. RONALD CASTORINA, JR., JUSTICE.
The following e-filed documents listed on NYSCEF (Motion #006) numbered 160-174, 197-207 and (Cross-Motion #007) numbered 179-194, 209-212 were read on these motions.
ORDERED, that the Plaintiff's request for the Defendant to resume payment for the full-time nanny of the children of the marriage is GRANTED in part to the extent that all the children's actual child care expenses, including, but not limited to, the continued employment of a full-time nanny, shall be divided on a pro-rata basis. Plaintiff is responsible for 25% of all actual child care expenses, pendente lite, subject to reallocation at trial, and the Defendant is responsible for 75% of all actual child care expenses, pendente lite, subject to reallocation at trial, and it is further;
ORDERED, that the Plaintiff's request for the Defendant to pay the retroactive costs of child care incurred by the Plaintiff for the full-time nanny of the children of the marriage from the date of the filing of Motion Sequence #006 on October 14, 2022 to the present is GRANTED in part to the extent that Defendant is Ordered to pay to the Plaintiff his 75% pro-rata share of actual child care expenses incurred by the Plaintiff retroactive to the date of the filing of Motion Sequence #006 on October 14, 2022, pendente lite, subject to reallocation at trial, it is further;
ORDERED, that the Plaintiff's request for the Defendant to pay the retroactive costs of child care incurred by the Plaintiff for the full-time nanny of the children of the marriage prior to the date of the filing of Motion Sequence #006 on October 14, 2022 is referred to the trial court;
ORDERED, that Plaintiff's request for the Defendant to pay to the Plaintiff, interim counsel fees in the amount of $5,000.00 [Five Thousand Dollars, and No Cents], pendente lite, subject to reallocation at trial, with leave to apply for additional sums as necessary to enable the Plaintiff to prosecute this action is GRANTED, it is further;
ORDERED, that the relief sought by the Defendant in Motion Sequence #007 is DENIED without prejudice to renew.
ORDERED, that the Clerk of the Court shall enter judgment accordingly.
Memorandum Decision
Statement of Facts
Plaintiff LGF and Defendant RF were married on XXXX XX, 2006, in a civil ceremony in Richmond County. There are two children of the marriage, to wit: LMF, born XXXX XX, 2012, and LF, born XXXX XX, 2018, both of whom are unemancipated. Plaintiff commenced this action for divorce on December 10, 2021.
On October 14, 2022, Plaintiff filed Motion Sequence #006 by Notice of Motion seeking (a) the Defendant to be directed to resume payment of the nanny for the children of the marriage; (b) the Defendant to be directed to pay $11,050.00 for retroactive childcare for the period of June 24, 2022 to the present; (c) the Defendant to be directed to pay interim counsel fees in the amount $5,000.00, pendente lite, and subject to reallocation at trial; and (d) such other and further relief as the Court may deem just and proper.
On November 15, 2022, Defendant filed Cross Motion Sequence #007 by Notice of Motion opposing Motion Sequence #006 and seeking (1) to enjoin the Plaintiff from accessing Defendant's emails, email account(s), or any other internet account(s) in the name of the Defendant, to which the Defendant has not given the Plaintiff authorization or permission to access; and (2) to enjoin the Plaintiff from asking, encouraging, directing, or otherwise soliciting another, implicitly or expressly, on the Plaintiff's behalf, to access the Defendant's emails, email account(s), or any other internet account(s) in the name of the Defendant.
Defendant further seeks (3) the Plaintiff to be directed to turn over any and all emails of the defendant in the possession of the Plaintiff; (4) the Plaintiff to be directed to preserve any and all emails between herself and XXXXXXXXX@gmail.com and/or any other communications with MN; and (5) such other and further relief as the Court may seem just, proper and equitable.
On December 7, 2022, Plaintiff filed combined opposition to Cross Motion Sequence #007 and reply on Motion Sequence #006. Defendant filed reply on Cross Motion Sequence #007 on December 16, 2022. Oral argument on Motion Sequence #006 and Cross Motion Sequence #007 was waived on the record on December 8, 2022. This is a Memorandum Decision and Order on Motion Sequence #006 and Cross Motion Sequence #007.
Discussion
I. Plaintiff Seeks Defendant to Resume Payment for the Children's Full-Time Nanny
During the parties' marriage, both the Plaintiff and Defendant have maintained full-time careers. (NY St Cts Filing [NYSCEF] Doc No. 162; 180). Plaintiff is a project engineer with TCC, Inc. and the Defendant is an independent contractor and the President of AEC a commercial construction company. (NY St Cts Filing [NYSCEF] Doc No. 162). Plaintiff alleges that following the birth of their oldest child in 2012, the parties jointly decided to hire a full-time nanny and have consistently maintained a full-time nanny for the last ten years to allow them to continue their careers. (see id).
Plaintiff also alleges that since the engagement of a full-time nanny in 2012, the nanny was always employed as a 1099 employee of AEC. (see id). Plaintiff provides credible evidence in the form of a 2021 Form 1099-NEC issued by AEC in the amount of $14,040.00 in the name of the person identified by Plaintiff as the full-time nanny. (NY St Cts Filing [NYSCEF] Doc No. 163). Plaintiff further alleges that in February 2022, Defendant began paying nanny from his personal bank account. (NY St Cts Filing [NYSCEF] Doc No. 162). The Defendant's Statement of Net Worth dated March 9, 2022 and filed with the Court on March 14, 2022, indicates his monthly expenses includes $2,600.00 for "Nanny/Au Pair/Child Care". (NY St Cts Filing [NYSCEF] Doc No. 165).
Defendant states in his affidavit that the parties did hired a full-time nanny when the children were born. (NY St Cts Filing [NYSCEF] Doc No. 180). Defendant does not dispute that the parties had a full-time nanny consistently from the time of their oldest child's birth to the present. Defendant does not deny the allegation that prior to February 2022, when he began paying the full-time nanny from his personal bank account, the full-time nanny was a 1099 employee of the AEC.
The Defendant states in his affidavit, "It is true that we did hire a full-time nanny during the marriage when our children were first born. However, our children are now enrolled in school and do not require the care of a full-time nanny." (see id).
"The Defendant's 2020 W-2 reports an income in the amount of $344,500.00. In Defendant Exhibit B, the Plaintiff states in her affidavit, that '[a] significant portion of the Defendant's income goes unreported because he is paid in cash.'" (NY St Cts Filing [NYSCEF] Doc No. 168).
"Plaintiff also states, 'It is estimated he [Defendant] makes at least $100,000 annually in cash...' (see id).
"Plaintiff further alleges that the Defendant has increased his income 'by purchasing a semi-trailer truck and partnering with the company 'BBBBBBBB Trucking' in order to capitalize on supply chain issues caused by the COVID-19 Pandemic.'" (see id).
"Courts 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[.]" (see Davydova v Sasonov, 109 A.D.3d 955 [2d Dept 2013]; quoting Rubin v Della Salla, 78 A.D.3d 504 [1st Dept 2010]; citing Domestic Relations Law § 236 [B] [7]; George v George, 192 A.D.2d 693 [2d Dept 1993]).
An award of child support where parental income exceeds the statutory income cap should be based on the child's actual needs and the amount that is required for the child to live an appropriate lifestyle, rather than the wealth of one or both parties. (see Doscher v Doscher, 137 A.D.3d 962 [2d Dept 2016]).
In deciding Motion Sequence #003, the Court reviewed the evidence relating to the Defendant's substantial reported and alleged additional income and has weighed these factors in adjusting the income cap for the purposes of calculating combined income for child support. (see Domestic Relations Law § 240 (1-b) (f) (1)).
In determining the amount of monthly child support the Defendant would pay the Plaintiff the Court also considered the monthly amount of mortgage due, the lifestyle the children have grown accustomed to during the marriage, the Defendant's reported earnings beyond the cap, and the Defendant's purported financial resources. Upon consideration of the previously mentioned facts, the Court did not direct the Plaintiff to pay the monthly mortgage and directed Defendant to pay monthly maintenance, pendente lite, subject to reallocation at trial, and monthly child support, pendente lite, subject to reallocation at trial.
"[The] Family Court Act § 413 [1] [c] [4] provides that '[w]here the custodial parent is working... and incurs child care expenses as a result thereof, the court shall determine reasonable child care expenses and such child care expenses, where incurred, shall be prorated in the same proportion as each parent's income is to the combined parental income.'" (see Matter of Quashie v Wint, 148 A.D.3d 905 [2d Dept 2017]; Matter of Hayward v Rodriguez, 179 A.D.3d 795 [2d Dept 2020]).
Domestic Relations Law § 240 [1-b] [c] [4] also provides, "[w]here the custodial parent is working... and incurs child care expenses as a result thereof, the court shall determine reasonable child care expenses and such child care expenses, where incurred, shall be prorated in the same proportion as each parent's income is to the combined parental income."
"[W]here the custodial parent incurs child care expenses as a result of, inter alia, his or her employment, the noncustodial parent may be required to pay his or her proportionate share of such expenses as a supplement to the basic support obligation, and such expenses shall be prorated in the same proportion as each parent's income is to the combined parental income[.]" (see Matter of Amos-Richburg v Richburg, 94 A.D.3d 1112 [2d Dept 2012] citing Domestic Relations Law § 240 [1-b] [c] [4]; Matter of Wallin v Wallin, 53 A.D.3d 663 [2d Dept 2008]; McBride v McBride, 238 A.D.2d 320 [2d Dept 1997]).
The Defendant should be required to pay their pro rata share of the unreimbursed child care expenses in order for the Plaintiff to be employed. (see Marino v Marino, 183 A.D.3d 813 [2d Dept 2020]).
The Plaintiff has presented credible evidence that the employment of a full-time nanny was always part of the lifestyle enjoyed by the children of the marriage and it was an expense that was separately paid for by the Defendant. Plaintiff provides a 2021 IRS 1099 form for the full-time nanny issued by the Defendant's commercial construction company AEC. (NY St Cts Filing [NYSCEF] Doc No. 163).
Plaintiff further provides, the Defendant's sworn Statement of Net Worth, dated March 9, 2022, the Defendant lists as a recurring monthly expense $2,600.00, for a nanny. (NY St Cts Filing [NYSCEF] Doc No. 165).
The Defendant's does not contest the Plaintiff's allegations that the children have always had a full-time nanny or even that the Defendant has paid for the full-time nanny. The Defendant's argument rests solely on his assertion that the children are in school for much of the workday, and no longer need a full-time nanny.
The Plaintiff has presented credible evidence that since the Defendant left the marital residence, the Plaintiff has continued to work full-time, and the children continue to attend school. The Plaintiff is the sole custodial parent with the Defendant having supervised weekend visitation. While the children are in school, the Plaintiff does not work a standard 9:00 AM to 5:00 PM job, but rather her workday starts at 7:00 AM. Additionally, the children have two separate school schedules. The pick-up and drop off schedules vary between the younger child and the older child. A nanny is required to pick up the children and watch them during the hours of the regular workday. Neither Plaintiff nor the Defendant has any family members that could assist with childcare locally.
Plaintiff provides credible evidence that the Defendant was aware of the nanny, knew who the nanny was, communicated with the nanny, and prior to June 24, 2022 had paid the full cost of the nanny.
It is in the best interests of the children that the Plaintiff remain employed and contributing to their household income and support. It is also in the best interests of the children that they receive supplemental childcare in the familiar form of a full-time nanny.
Prior to the departure of the Defendant from the parties' marital home, when there were two parents to share in the responsibilities of caring for the two children of the marriage, the parties' engaged the services of a full-time nanny to manage their and the children's schedules and activities. The Plaintiff's continued use of a full-time nanny as prior to the separation of the parties is reasonable and in the best interests of the children to maintain the lifestyle the children have grown accustomed to and to permit the Plaintiff to continue working. Domestic Relations Law § 240 [1-b] [c] [4] requires that Plaintiff have her childcare costs reimbursed prorated in the same proportion as each parent's income is to the combined parental income.
Unlike the finding in Chusid, where presumptive award of temporary maintenance exceeded the plaintiff's alleged monthly expenses, this matter involves a pro rata reimbursement of actual expenditures by the Plaintiff for childcare of the parties' children. (see Chusid v Silvera, 110 A.D.3d 660 [2d Dept 2013]; citing Fox v Fox, 290 A.D.2d 749 [3d Dept 2002]; Ritter v Ritter, 135 A.D.2d 421 [1st Dept 1987]).
It is undisputed by the parties that the Plaintiff is and has been employed full time. (NY St Cts Filing [NYSCEF] Doc No. 163). The Plaintiff is seeking to obtain the costs of childcare incurred due to her nonstandard work hours and the varying schedules of the children's schooling. In McBride, the Plaintiff "never sought or obtained employment and did not incur any child care expenses[.]" (see McBride v McBride, 238 A.D.2d 320 [2d Dept 1997]).
A. Combined Parental Income and Pro Rata Share
This Court decided the amount of combined parental income in its pendente lite Memorandum and Decision on Motion Sequence #003 on May 13, 2022, to wit:
"A parent has an obligation to provide support for his or her child's basic needs, an obligation which is addressed in Domestic Relations Law §240 (1-b) (c) (1), (2)." (see Cimons v Cimons, 53 A.D.3d 125 [2d Dept 2008]. The Child Support Standards Act "provides a precisely articulated, three-step method for determining child support." (see Boltz v Boltz, 178 A.D.3d 656 [2d Dept 2019]. This three-step process includes (1) computing a combined parental income, (2) multiplying that income, up to a certain income cap, by a specific percentage, and (3) determining the amount of income that should be considered for child support purposes if the combined parental income exceeds the income cap. (See Cassano v Cassano, 85 N.Y.2d at 649 [1995]).
Where the "combined parental income exceeds the statutory cap, the court shall determine the amount of child support for the amount of combined parental income in excess of such dollar amount through consideration of the factors set forth in Domestic Relations Law §240 (1-b) (4) and/or the child support percentage." (see Pandis v Lapas, 176 A.D.3d 837 [2d Dept 2019]).
Plaintiff Maintenance Payee Income with Guideline Maintenance Adjustment
$95,535.03
Defendant Maintenance Payor Income with Guideline Maintenance Adjustment
$294,144.59
Combined Parental Income
$389,679.62
Computation of Child Support Obligation up to and Including the Statutory Cap
Statutory Combined Parental Income Cap
$163,000.00
Applicable Child-Support Percentage
25%
Total Annual Parental Child Support Obligation
$40,750.00
Non-Custodial Parent's Percentage Share of Combined Parental Income Non-Custodial Parent Income/Combined Parental Income
75.48 %
Custodial Parent's Percentage Share of Combined Parental Income Custodial Parent Income/Combined Parental Income
24.52%
Non-Custodial Parent's Basic Child Support Obligation
$30,759.61
[*6]Non-Custodial Parent's Annual Basic Payment (% Share of Combined Child Support
$37,339.78
For Income Above $163,000
Adjusted Income Cap
$315,000.00
Combined Parental Income Above Statutory Cap
$152,000.00
Applicable Child Support Percentage
25%
Parental Child Support Obligation
$78,750.00
Non-Custodial Parent's Adjusted-Cap Annual Child Support Obligation
$59,443.41
The Defendant is the President of AEC, a commercial construction company. The Defendant's 2020 W-2 reports an income in the amount of $344,500.00. In Motion Sequence #003, in NYSCEF Document numbered 51, the Plaintiff states in her affidavit (on page seven), that "[a] significant portion of the Defendant's income goes unreported because he is paid in cash." Plaintiff also states, "It is estimated the [Defendant] makes at least $100,000 annually in cash..." Plaintiff further alleges that the Defendant has increased his income "by purchasing a semi-trailer truck and partnering with the company "BBBBBB Trucking" in order to capitalize on supply chain issues caused by the COVID-19 Pandemic."
The Court has reviewed the evidence relating to the Defendant's substantial reported and alleged additional income and has weighed these factors in adjusting the income cap for the purposes of calculating combined income for child support. (see Domestic Relations Law § 240 (1-b) (f) (1)).
The Court has further, considered the lifestyle the children have grown accustomed to during the marriage. In the reply to Motion Sequence #003, in NYSCEF Document numbered 80, Plaintiff affirms that the children have been fortunate enough to have a nanny, attend private schools, and take vacations, in addition to all the other incidentals needs. This standard of living the children would have enjoyed had the marriage or household not been dissolved is a factor the Court considered in its determination whether to exceed the statutory cap. (see Domestic Relations Law § 240 (1-b) (f) (3)).
In determining the appropriate amount of Child Support, pendente lite, the Court has considered all the factors under Domestic Relations Law §240 and has determined that under these facts it is appropriate for the Court to exercise its discretion in deviating from the cap and award child support on the combined parental income up to $315,000.000". (Quoting Memorandum Decision and Order on Motion Sequence #003; see NY St Cts Filing [NYSCEF] Doc No. 166).
Accordingly, Child Support was granted to the Plaintiff and Defendant was directed to pay monthly child support to the Plaintiff retroactive to the date of Motion Sequence #003, February 28, 2022, the amount of $4,953.62 [Four Thousand Nine Hundred Fifty-Three Dollars and Sixty-Two Cents], pendente lite, subject to reallocation at trial.
Combined Parental Child Support Obligation Above the Cap
$78,750.00
Non-Custodial Parent's Adjusted-Cap Annual Child Support Obligation
$59,443.41
Plaintiff's Pro Rata Share
25%
Defendant's Pro Rata Share
75%
B. Cost of Child Care
"[T]he father should only be required to pay his share of the child care expenses actually incurred by the mother[.]" (see Matter of Scarduzio v Ryan, 86 A.D.3d 573 [2d Dept 2011] citing Shanon v Patterson, 294 A.D.2d 485 [2d Dept 2002]; McBride v McBride, 238 A.D.2d 320 [2d Dept 1997]).
Plaintiff states in her affidavit that the full-time nanny was paid $11,050.00 for 17 weeks of work. (NYSt Cts Filing [NYSCEF] Doc No. 162). The weekly rate calculates out to be $650.00 per week or $2,600.00 per month. Plaintiff further provides a list of purported bank transfers from the Plaintiff to the full-time nanny in the amount of $650.00 per week. (NY St Cts Filing [NYSCEF] Doc No. 204).
Defendant acknowledges the cost of the full-time nanny in his sworn Statement of Net Worth in which he lists the monthly expense of the children's nanny as $2,600.00 per month or $650.00 per week. (NY St Cts Filing [NYSCEF] Doc No. 165).
The Court finds there is credible evidence to support the Plaintiff's claim that she is required to pay $650.00 per week for a full-time nanny to maintain her employment and further, it is in the best interests of the children for the Plaintiff to maintain her employment and provide a lifestyle that the children have grown accustomed.
Weekly Cost of Full-Time Nanny
Weekly Cost of Full-Time Nanny
$650.00
Plaintiff Pro Rata Share 25%
$162.50
Defendant Pro Rata Share 75%
$487.50
"[B]y statute, a party's child support and maintenance obligations are retroactive to the date an application for such support was made (see Domestic Relations Law § 236 [B] [6] [a]; [7] [a])." (see Groesbeck v Groesbeck, 51 A.D.3d 722 [2d Dept 2008]).
The "Court properly determined that the defendant was entitled to an award of child support retroactive to... the date of her pendente lite motion (see Fredericks v Fredericks, 85 A.D.3d 1107 [2d Dept 2011] citing Groesbeck v Groesbeck, 51 A.D.3d 722 [2d Dept 2008]).
This is not a motion for child support or maintenance obligations. This is a motion for reimbursement of child care expenses, which the Defendant was paying in full prior to the commencement of the action, and continued to pay through and after the Court's Order for child support, pendente lite, subject to reallocation at trial, and maintenance, pendente lite, subject to reallocation at trial. On June 24, 2022, more than one month after the May 13, 2022, Court Order directing the Defendant to pay monthly child support, pendente lite, subject to reallocation at trial, and monthly maintenance, pendente lite, subject to reallocation at trial, the Defendant of his own volition stopped paying anything toward the actual child care expenses incurred by the Plaintiff, the full-time custodial parent for the Children.
Following the Defendant's ceasing of child care contributions, the parties attempted to negotiate a settlement in this matter and avoid the need to engage in protracted motion practice. These negotiations were unfruitful.
In Matter of Lewis v Redhead (37 A.D.3d 469 [2d Dept 2007]), the Second Department properly determined the father's pro rata share of child care expenses, incurred prior to the date of filing of the mother's petition for modification of the support order, after a trial. This court may be inclined to do so, but it requires testimony and other relevant evidence in order to make such a finding. As this matter is swiftly approaching trial, judicial economy dictates that the issue of retroactive remuneration for child care incurred prior to the instant application; is referred to the trial court.
Accordingly, it is ORDERED that all the children's child care expenses, including but not limited to the employment of the full-time nanny, shall be divided on a pro-rata basis. Plaintiff is responsible for 25% of all child care expenses, pendente lite, subject to reallocation at trial, and the Defendant is responsible for 75% of all child care expenses, pendente lite, subject to reallocation at trial.
It is further ORDERED that retroactive child care expenses are granted to Plaintiff and Defendant is Ordered to pay to the Plaintiff his 75% pro-rata share of the actual child care expenses incurred by the Plaintiff retroactive to the date of the filing of Motion Sequence #006 on October 14, 2022, pendente lite, subject to reallocation at trial.
It is further ORDERED that the issue of the Plaintiff's request for relief in directing the Defendant to pay the Plaintiff his retroactive 75% pro-rata share child care expenses prior to the date of the filing of Motion Sequence #006 on October 14, 2022 is referred to the trial court.
II. Interim Counsel Fees
An award of pendente lite counsel fees pursuant to Domestic Relations Law §237 (a) "is a matter within the sound discretion of the trial court" and "is controlled by the equities and circumstances of each particular case." (see Quinn v Quinn, 73 A.D.3d 887 [2d Dept 2010]). Counsel fee awards have helped reduce what would otherwise be substantial advantages for the monied spouse in matrimonial litigation. (see Frankel v Frankel, 2 N.Y.3d 601 [2004]). "[T]he Legislature invested trial judges with the discretion to make the more affluent spouse pay for legal expenses of the needier one. The courts are to see to it that the matrimonial scales of justice are not unbalanced by the weight of the wealthier litigant's wallet." (see O'Shea v O'Shea, 93 N.Y.2d 187 [1999].
There is a significant disparity in the parties' incomes. The Defendant's income is almost double that of the Plaintiff. These factors combine to create an environment in which the Defendant is required to pay a significant portion of the Plaintiff's counsel fees. The Court Orders the Defendant to pay the Plaintiff interim counsel fees in the amount of $5,000.00 [Five Thousand Dollars, and No Cents], pendente lite, subject to reallocation at trial, with leave to apply for additional sums as necessary to enable the Plaintiff to prosecute this action.
III. Allegation of Plaintiff Accessing Defendant's Email/Internet Accounts
In Motion Sequence #006, Plaintiff has offered two email receipts for hotel bookings addressed to the Defendant as Exhibit H (NY St Cts Filing [NYSCEF] Doc No. 170) and Exhibit J (NY St Cts Filing [NYSCEF] Doc No. 172). Defendant alleges that these emails demonstrate that the Plaintiff has gained access to the Defendant's personal emails without prior consent and authorization and this access severely prejudices the Defendant in this action given the fact that he uses the email in question to communicate with his attorney and a purported review of his emails could advantage the Plaintiff in this litigation by learning the Defendant's litigation strategy.
Defendant further alleges a third party to the Plaintiff and Defendant has accessed the Defendant's account and business files. Defendant also alleges Plaintiff accessing his EZ Pass account and his Costco account.
Plaintiff also denies having the physical access to the Defendant's iPhone that is needed to overcome the Apple two-factor verification process that involves a one-time confirmation code that is sent to the owner's iPhone.
Plaintiff also denies having contact with the third party who allegedly accessed the Defendant's account and business files. Plaintiff states that she received the emails provided as Exhibit H (NY St Cts Filing [NYSCEF] Doc No. 170) and Exhibit J (NY St Cts Filing [NYSCEF] Doc No. 172) because they sent to the parties' joint, family email account. Plaintiff alleges that the Defendant began removing their family email account from various services and replacing it with his personal email account, however, the hotel booking site was apparently not changed.
Plaintiff further purports that the EZ Pass account and the Costco account were both family accounts used by both parties.
Defendant refers to Plaintiff's Exhibit H (NY St Cts Filing [NYSCEF] Doc No. 170) and Exhibit J (NY St Cts Filing [NYSCEF] Doc No. 172), which are emailed booking confirmations and which Defendant alleges the Plaintiff or her agents have accessed by hacking his account. Plaintiff responds that Defendant merely failed to change the email from their family email to his personal email and she received the confirmations.
Defendant's Exhibit G (NY St Cts Filing [NYSCEF] Doc No. 188) is several pages of screen shots allegedly indicating that a third party in the cybersecurity industry, who known to both parties and may or may not have accessed the Defendant's computer at Defendant's request, and allegedly accessed the computer system of AEC without Defendant's authorization.
Defendant's Exhibit I (NY St Cts Filing [NYSCEF] Doc No. 190) is several pages of screenshots showing a history of changes to the Defendant's "personal" EZ Pass account password and contact information. The EZ Pass tag for the Plaintiff's car is issued from this account and Plaintiff alleges that this is a family account.
The Defendant further provided photos of items purported to be GPS tracking devices (NY St Cts Filing [NYSCEF] Doc No. 191) and an allegedly recent photo of two individuals with the Plaintiff, one of whom is purportedly the spouse of the third party in the cybersecurity industry. (NY St Cts Filing [NYSCEF] Doc No. 211).
Neither party should be accessing or attempting to access or using any third party to access or attempt to access the private and personal emails or internet accounts of the other party. The exhibits presented by the Defendant do not provide sufficiently credible evidence to support the claim that the Plaintiff is orchestrating a sophisticated hacking operation to access and retain the Defendant's data. Defendant has failed to provide relevant and credible expert testimony as to these claims. The court can not investigate these claims. Until and unless such claims are corroborated by relevant credible evidence, and testimony from an expert, the claims appear to this court to be an unwelcome dalliance from the major issues presented in this action for divorce.
Accordingly, Motion Sequence #007 is DENIED in its entirety without prejudice to renew.
Decretal Paragraphs
ORDERED, that the relief sought by the Plaintiff's request for the Defendant to resume payment for the full-time nanny of the children of the marriage is GRANTED in part to the extent that all the children's actual child care expenses, including, but not limited to, the continued employment of a full-time nanny, shall be divided on a pro-rata basis. Plaintiff is responsible for 25% of all actual child care expenses, pendente lite, subject to reallocation at trial, and the Defendant is responsible for 75% of all actual child care expenses, pendente lite, subject to reallocation at trial, and it is further;
ORDERED, that the relief sought by the Plaintiff's request for the Defendant to pay the retroactive costs of child care incurred by the Plaintiff for the full-time nanny of the children of the marriage from the date of the filing of Motion Sequence #006 on October 14, 2022 to the present is GRANTED in part to the extent that Defendant is Ordered to pay to the Plaintiff his 75% pro-rata share of actual child care expenses incurred by the Plaintiff retroactive to the date of the filing of Motion Sequence #006 on October 14, 2022, pendente lite, subject to reallocation at trial, and it is further;
ORDERED, that the Plaintiff's request for the Defendant to pay the retroactive costs of child care incurred by the Plaintiff for the full-time nanny of the children of the marriage prior to the date of the filing of Motion Sequence #006 on October 14, 2022 is referred to the trial court, and it is further;
ORDERED, that Plaintiff's request for the Defendant to pay to the Plaintiff, interim counsel fees in the amount of $5,000.00 [Five Thousand Dollars, and No Cents], pendente lite, subject to reallocation at trial, with leave to apply for additional sums as necessary to enable the Plaintiff to prosecute this action is GRANTED, and it is further;
ORDERED, that the relief sought by the Defendant in Motion Sequence #007 is DENIED without prejudice to renew.
ORDERED, that the Clerk of the Court shall enter judgment accordingly.
Any relief requested, and not specifically dealt with in this Decision and Order, is referred to the trial court.
The foregoing shall constitute the Decision and Order of this Court.