Opinion
Index No. 100715/2020
01-05-2023
M.G.W., Plaintiff, v. V. D., Defendant.
Counsel for Plaintiff Randi L. Karmel, PLLC By: Randi L. Karmel, Esq. Counsel for Defendant Levoritz Law Group By: Yonatan S. Levoritz, Esq.
Unpublished Opinion
Counsel for Plaintiff Randi L. Karmel, PLLC
By: Randi L. Karmel, Esq.
Counsel for Defendant Levoritz Law Group
By: Yonatan S. Levoritz, Esq.
ARIEL D. CHESLER, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 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, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175 were read on this motion to/for PENDENTE LITE.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36 were read on this motion to/for CUSTODY & VISITATION.
The following e-filed documents, listed by NYSCEF document number (Motion 004) 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 224, 225, 226, 227, 228, 229, 230, 231, 232, 283 were read on this motion to/for CUSTODY & VISITATION.
The following e-filed documents, listed by NYSCEF document number (Motion 005) 240, 241, 242, 243, 244, 245, 246, 247, 248, 249, 250, 251, 252, 253, 254, 255, 256, 257, 258, 259, 260, 261, 262, 263, 264, 265, 266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, 277, 278, 279, 280, 284, 285, 319, 320, 321, 322, 323, 324, 325, 326, 327, 328, 329, 330, 331, 332, 333, 334, 335, 336, 337, 338, 339, 340, 383, 384, 385, 386, 387, 388, 389, 390, 391, 392, 393 were read on this motion to/for RELEASE RECORDS.
The following e-filed documents, listed by NYSCEF document number (Motion 006) 288, 289, 290, 291, 292, 293, 294, 295, 296, 297, 298, 299, 300, 344, 356, 357, 358, 359, 360, 361, 362, 363, 372, 373, 374, 375 were read on this motion to/for CUSTODY & VISITATION.
Upon the foregoing documents, it is
In these motions, various relief is sought, some of which is duplicative, some of which is resolved or moot, and some which has been withdrawn. Further, particularly as it relates to custody, visitation and access, the Court has issued interim orders addressing the concerns raised in the motions.
CUSTODY AND ACCESS
Relief relating to custody, visitation, and access are set forth in motion sequences 1, 2, 4, 5, and 6. The Court has issued various interim orders relating to continued supervised access for Defendant as well as issued additional directives expanding such access on the record, including most recently on October 25, 2022. In addition, the Court has granted the additional relevant relief of appointing an Attorney for the Child in an Order dated July 5, 2022, and has directed the appointment of a forensic evaluator.
Defendant's access shall continue to be supervised through CFS and a babysitter as previously directed by the Court. Accordingly, all interim concerns regarding custody/access have been addressed and the Court will entertain further requests for expansion and modification of access going forward.
Regarding the cost of CFS supervised visits, the Defendant shall continue to solely bear the cost of the same. However, the parties shall equally share the cost of the babysitter selected for the Defendant's expanded access permitted by the Court.
Finally, based on the current reality, schedule, and concerns raised - including in the reports issued by Dr. Elie G. Aoun on March 19, 2021 and March 5, 2022 - the father shall have temporary primary physical custody of the child. However, to the extent both parties request the ultimate relief of an award of legal or physical custody, such requests are referred to hearing or trial, if necessary.
TEMPORARY CHILD SUPPORT AND MAINTENANCE
In motion sequences 2 and 5, Defendant requests temporary maintenance of $6,672.53 or $6,274.00 per month, respectively. Plaintiff currently pays Defendant $500 per month ($125 per week) in temporary maintenance on a voluntary basis. Until August 2020, Defendant was depositing $500-$600 per week in temporary support but explains he could not sustain such payment.
Defendant argues that Plaintiff's true income is $226,014 annually if not more and that she has no income. She bases her accounting of Plaintiff's income on a printout from smartassets.com and, inter alia, a summary she created which shows that the parties invested/deposited $30,518.15 in 2019. Defendant also notes that she forsook her modeling career to care for the parties' daughter. Further, she focuses on the cost of Plaintiff's new residence, which she claims costs him $4,527 per month.
Plaintiff claims that Defendant never had a career as a model when they were together but did work as a makeup artist.
Based on his 2020 tax returns, Plaintiff's adjusted gross income in 2020 was $30,855 and his gross receipts were $53,546. In 2019, the parties' joint income was $26,113. Plaintiff claims his 2021 income is $58,000. According to Plaintiff, during the marriage the parties spent above their actual means mostly due to Defendant. He states that earnings from his book were a long time ago, and that he has not worked in finance for many years since being in the United States. Rather, he has been a personal trainer and reduced work travel to help raise the parties' daughter. Plaintiff also explains that his expenses are not that great, and that his apartment, which currently costs only $3,400 per month, and that his godfather is listed on the lease because Plaintiff had issues with his credit rating due to marital debt cause by Defendant.
While Defendant currently earns no income, income could properly be imputed to her based on the assistance she receives from family including living rent free with her mother. In addition, income could be imputed to her based on her various skills and ability to work. She also indicates she is now working part time and attending school.
Utilizing Plaintiff's most recent income of $58,000 (which is higher than past years) minus appropriate statutory deductions, and an income of $0 for Defendant would result in temporary maintenance of $1,295.33 per month. However, here, imputing even a moderate amount of income to Defendant (e.g. $37,500) based on her part time work and family assistance would result in an award of no temporary maintenance. Further, the Court considers as factors that Defendant is young and able to work, that the parties spent beyond their means during the marriage and accrued debt which Plaintiff has been paying off, and the fact that the father is the only parent paying for the child's costs.
However, the Court also considers that the mother is attending school in order to advance her employability. Accordingly, considering all these factors the Court orders the Plaintiff to continue paying temporary maintenance in the amount of $125 each week to Defendant. Notably, given the length of the marriage - 4 years and 4 months - the guideline duration of maintenance is between 8 months and 1 year and 4 months, and it is the opinion of the Court that in no event should maintenance continue beyond one year from the date of this Order. Indeed, Plaintiff has already been paying temporary maintenance to Defendant on a voluntary basis for over two years.
Defendant requests child support in motion sequence 2 but seemingly withdraws the request in motion sequence 5, in which she has only requested spousal support. In any event, the request is denied as Plaintiff has primary residential custody of the parties' daughter and currently pays for all of the child's basic expenses.
VOCATIONAL EXPERT AND NEUTRAL FORENSIC
Defendant moves for the appointment of a Vocational expert - Daniel Wolstein - to evaluate Plaintiff's true earning potential. In support of this request, she points to Plaintiff's degree in economics and his past career as an investment banker. She also notes the success of his book [Title Redacted] his having been profiled in numerous media outlets, and the success of his fitness program and personal training.
Plaintiff explains that he has never worked as an investment banker since he moved to the United States. He states he has only worked here as a personal trainer and in related fitness pursuits. He also notes that he does not have the certifications or credentials to work in banking in the U.S. Regarding the success of his book and his being featured in the media, Plaintiff states that none of that is recent and indeed dates back to 2010 and 2011, and nothing is more recent than 2018.
Plaintiff's adjusted gross income over the past few years ranges between $40,000 and $60,000 based on his work as a personal trainer. He also denies the existence of additional income or assets and explains he made certain investments with borrowed money in the past. He also notes that he reduced his work and travel after their daughter was born in order to have more flexibility to care for her.
The Court notes that it could impute income to both parties, including relating to family assistance, as well as the wife's prior modeling career and her own earning potential. However, after considering the circumstances of Plaintiff's actual employment over the past number of years and throughout his time in the United States, the Court finds no basis to direct the appointment of a vocational expert to be paid for by Plaintiff. Reliance on Turbeville v Turbeville (140 A.D.3d 548 [1st Dept 2016]) is misplaced inasmuch as that case involved a party who was not working and claimed he could not work. Here, Plaintiff is employed in the same field he has been engaged in for many years. Accordingly, this aspect of the motion is denied.
To the extent the issue of appointing a neutral forensic to value Plaintiff's business is raised in motion sequence 2, it is noted that the requested relief is not listed on the Order to Show Cause. Nor is the issue briefed or discussed in the affidavit or affirmation. Rather, the request is merely listed for the first time in the Defendant's prayer for relief at the conclusion of her November 10, 2020 affidavit. Accordingly, this request is denied without prejudice to renewal.
To the extent not addressed herein, all other relief requested on the motions is deemed resolved or denied.
This constitutes the Decision and Order of this Court.