Opinion
Index No. 300812/2019
03-22-2022
M.B., Plaintiff, v. M.C.B., Defendant.
Counsel for Plaintiff Hodgson Russ LLP By: Jacqueline Meyer, Esq. Counsel for Defendant Green Kaminer Min & Rockmore LLP By: Nancy M. Green, Esq.
Unpublished Opinion
Counsel for Plaintiff
Hodgson Russ LLP
By: Jacqueline Meyer, Esq.
Counsel for Defendant
Green Kaminer Min & Rockmore LLP
By: Nancy M. Green, Esq.
ARIEL D. CHESLER, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 009) 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 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 were read on this motion to/for PENDENTE LITE.
Upon the foregoing documents, it is
Following consideration of the submissions on the motion and cross-motion, and oral argument on 3/18/2022 at which the parties and counsel were present, and the partial decision placed on the record on 3/18/2022, the Court issues the following decision.
In this motion, Plaintiff moves for various awards of childcare arrears and related tax payments, extracurricular and camp fees, past childcare expenses from early 2019, an award of counsel fees, and retroactive reapportionment of fees for the forensic and GAL. The Defendant cross-moves for downward modification of the basic pendente lite child support award and modification of his childcare payment obligation.
On March 20, 2019, the Court issued an order directing the parties to each pay 50% of the costs of a GAL and forensic. In that same order, Defendant was ordered to pay $132,000 to the Hodgson Russ escrow account. In a November 7, 2019 order, the Court directed Defendant to pay Plaintiff $24,000 from $48,000 in his Fidelity account which defendant acknowledged was marital property.
On June 4, 2019, the Court issued an order on consent of the parties which used a modified statutory cap for child support of $300,000, and using the CSSA calculations, directed Defendant to pay $2,506.47 per month in basic child support. The June 4, 2019 order specified that it was retroactive only for the month of June 2019, but not further back than that. Any further claim for retroactive child support was reserved for future motion or trial. Further, the order directed plaintiff to pay 40% and the defendant to pay 60% of statutory add-on expenses for the parties' child.
On January 31, 2020, the Court issued an order, which, among other things, directed Defendant to pay child care arrears and to pay $1,075.80 every other Friday as and for his share of childcare and healthcare expenses.
Then, on November 24, 2020, the Court issued an order directing defendant to pay interim counsel fees to plaintiff in the amount of $95,000. Notably, in finding that defendant was the "monied" spouse, the Court considered the disparity in income based on the parties' 2019 W-2 statements, and also that defendant had access to assets and accounts far in excess of what is available to plaintiff. The Court also noted that Defendant's behavior, including failing to comply with his financial obligations, and concerns about his behavior towards Plaintiff and his parenting abilities, had resulted in protracted litigation and resulted in Plaintiff incurring large amounts of counsel fees.
In his cross-motion, Defendant seeks a downward modification of his basic child support obligation and his childcare obligation. As Defendant recognizes, the remedy for his concerns is a speedy trial (see Moreira v. Moreira, 201 A.D.3d 411 [1st Dept 2022]) and there are no exigent circumstances necessitating modification of the award. Moreover, the controlling pendente lite support order was entered on consent.
In any event, even accepting there is an increase in Plaintiff's income, Defendant's request is insufficiently supported and therefore must be denied. In support of his application, defendant submits his 2021 W-2 which does not provide a figure for his gross income, which is the figure the Court must use to calculate child support before reducing same by statutory deductions. Rather, his W-2 only provides fields for his "wages" and his "medicare wages," neither of which is the appropriate starting point for child support calculations. A review of the W-2 form also reveals that Defendant paid $19,500 into his retirement account and $8,799.24 for health insurance, both of which must be included in his gross income (see DRL § 236(B)(5-a)). The Court must therefore conclude that his gross income is significantly higher than his "medicare wages," and is at least $230,000 or more. Notably, the income on Defendant's 2019 W-2 form is in the $240,000 range.
Nor has Defendant provided updated information about his savings and brokerage account assets or documentation about his withdrawal of $545,000 in funds from the much disputed Fidelity account. In sum, not only has Defendant provided insufficient information about his income, the information provided does not establish a drastically different income from that previously used to calculate interim child support. Accordingly, it is
ORDERED that the cross-motion is denied.
There is no dispute that Defendant was previously ordered to pay a portion of the childcare costs and that Defendant has not paid his portion of the childcare cost for the period September 20, 2021 to December 17, 2021, totaling $6,220, and it is therefore
ORDERED that Defendant within two weeks of this Order pay plaintiff $6,220 as and for such childcare arrears.
It appears undisputed from the submissions on the motions that Defendant sought for the child's nanny to be paid "on the books" thus requiring the payment of taxes. Plaintiff now seeks for Defendant to pay 60% of the taxes she paid for childcare in the amount of $20,974, which she paid for the period September 2, 2019 to December 17, 2021. However, when this issue was previously raised the parties were specifically instructed by the Court that the issue would be reserved for trial (see Exhibit L to Plaintiff's Affidavit). Accordingly, this issue is reserved for trial in this matter. Relatedly, and for the same reason, the Court denies the request to increase the amount Defendant is directed to pay for childcare costs (to include taxes) on a going forward basis as requested by Plaintiff.
Plaintiff also asks for the Court to direct Defendant to pay $8,640 which represents 60% of the childcare costs incurred between January 29, 2019 and May 31, 2019, a time period not considered in the June 14, 2019 order. The fact that these costs were incurred is not disputed anyplace in the opposition/cross-motion and the Court sees no reason why both parties would not be responsible for the actual childcare costs incurred for their child. The Court also finds it appropriate for the parties to pay the same pro rata share for such childcare as previously directed. Accordingly, it is
ORDERED that within two weeks of this Order, defendant shall pay to plaintiff the sum of $8,640 as and for his share of the childcare costs incurred between January 29, 2019 and May 31, 2019.
The Court also rejects Defendant's position that Plaintiff does not need the same amount of childcare as has historically been needed. While the parties' son is in school until 2:30 PM each day, Defendant fails to consider the realistic childcare needs for working parents. As Plaintiff notes, she is essentially operating as a single parent and she works full time. Her work includes travel, and both morning and evening meetings. Further, there are many days the parties' son does not have school, including holidays and breaks, days he is sick, as well as other days schools have been closed particularly during this pandemic. In addition, full time working parents need childcare to ensure children are brought to and picked up from school, brought to and picked up from afterschool activities, and cared for until parents arrive home from work. Finally, Defendant appears to underestimate the challenge of securing reliable childcare without hiring someone full-time. It is clear that Plaintiff and the parties' child continue to require such full time childcare.
Plaintiff also seeks payment for arrears for camp and extracurricular activities in the amount of $7,425 covering the period between January 1, 2021 and November 30, 2021. This includes Camp M., where both parties went as children, and moderately priced afterschool activities. Defendant does not dispute the amount of costs or that the parties both went to Camp M.. Instead, he argues that he was never ordered to pay for such costs and that these costs are not statutory add-ons. However, the parties' incomes, resources, marital lifestyle and expectations for their child must be considered. It is clear that the parties' means and expectations would include these type of expenses for their child. Accordingly, to the extent not already ordered, the Court now directs that the parties shall split the cost of camp and extracurricular activities for their son using the same pro rata share for other add-on costs, to wit 40% by plaintiff and 60% by Defendant, and it is
ORDERED that within two weeks of this Order Defendant pay to plaintiff the sum of $7,425 as and for such extracurricular and camp arrears.
Plaintiff also asks for this Court to retroactively and prospectively reapportion the fees for the Guardian Ad Litem and the forensic. As noted, the order issued on such fees specified that each party would pay 50% of such fees. This Court declines to reapportion the percentage of these costs each of the parties must pay as there have been no significant financial changes in circumstances warranting or supporting a reapportionment of such costs. In fact, Plaintiff's income has increased and such increase does not support the reapportionment she requests.
Finally, Plaintiff seeks a further interim award of counsel fees in the amount of $87,675 for the period between July 15, 2020 and November 30, 2021. The application is supported with billing statements, counsel's affirmation, and Plaintiff's statement of net worth. There has already been a determination that Defendant is the monied spouse, particularly taking into account his various assets. As noted, Defendant fails to account for $545,000 transferred from the Fidelity account. In this regard, the Court notes that even assuming arguendo that such asset is separate property, it may still be considered in looking at the parties' relative financial circumstances. There are also other assets listed in Defendant's updated statement of net worth that fail to state what their value or approximate value. Even accepting that Plaintiff's income grew in 2021, there is no indication she has access to significant assets.
In addition, while certain obstruction is denied by Defendant, Plaintiff outlines in great detail and convincingly how Defendant's obstruction and failure to cooperate with supervised visitation, among other things, caused her to incur significant counsel fees. Plaintiff's claims in this regard line up with prior orders of the Court and the words of the prior jurist handling this matter, particularly those found in the December 7, 2021 transcript attached to Plaintiff's opposition to the cross-motion.
DRL § 237 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]). In addition to looking at the incomes and assets 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 and in these circumstances, the Court finds it appropriate to grant an additional award of counsel fees given the disparity in the financial circumstances of the parties and the unnecessary litigation caused by Defendant. More specifically, the Court grants the request for interim counsel fees to the extent of awarding $50,000 in additional interim counsel fees, and it is therefore
ORDERED that Defendant is directed to pay $50,000 in interim counsel fees directly to the Plaintiff's counsel on or before April 25, 2022. Such fee award is subject to reallocation at trial; and it is further
ORDERED that any relief not granted is denied.
This constitutes the decision and order of the court.