Opinion
Nos. 2023-00409 2023-04653 Index No. 203303/16
05-22-2024
Walter Munsterman, respondent, v. Danielle Munsterman, appellant.
Law Offices of Seth M. Weinberg, PLLC, Hauppauge, NY, for appellant. Law Offices of John J. Fellin, PLLC, West Islip, NY, for respondent.
Law Offices of Seth M. Weinberg, PLLC, Hauppauge, NY, for appellant.
Law Offices of John J. Fellin, PLLC, West Islip, NY, for respondent.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, LARA J. GENOVESI, LOURDES M. VENTURA, JJ.
DECISION & ORDER
In a matrimonial action in which the parties were divorced by judgment dated July 10, 2018, the defendant appeals from (1) an order of the Supreme Court, Nassau County (Jeffrey A. Goodstein, J.), entered December 5, 2022, and (2) a money judgment of the same court dated March 10, 2023. The order, insofar as appealed from, granted those branches of the plaintiff's motion which were for an award of child support to the extent of directing the defendant to pay basic child support in the sum of $1,322.87 per month and for an award of counsel fees to the extent of directing the defendant to pay counsel fees in the sum of $60,000. The money judgment, upon the order, is in favor of the plaintiff and against the defendant in the principal sum of $60,000.
ORDERED that the appeal from so much of the order as granted that branch of the plaintiff's motion which was for an award of counsel fees to the extent of directing the defendant to pay counsel fees in the sum of $60,000 is dismissed, as that portion of the order was superseded by the money judgment; and it is further, ORDERED that the order is modified, on the law, on the facts, and in the exercise of discretion, by deleting the provision thereof granting that branch of the plaintiff's motion which was for an award of child support to the extent of directing the defendant to pay the plaintiff basic child support in the sum of $1,322.87 per month, and substituting therefor a provision granting that branch of the motion to the extent of directing the defendant to pay the plaintiff basic child support in the sum of $715.84 per month; as so modified, the order is affirmed insofar as reviewed; and it is further, ORDERED that the money judgment is reversed, on the law, that branch of the plaintiff's motion which was for an award of counsel fees is denied, and the order is modified accordingly; and it is further, ORDERED that one bill of costs is awarded to the defendant.
The parties were married in 2013 and have one child. In May 2018, the parties executed a stipulation of settlement (hereinafter the May 2018 stipulation), which was incorporated but not merged into their judgment of divorce entered July 10, 2018. The May 2018 stipulation provided that the plaintiff was to pay the defendant $2,335.61 per month in child support, and calculated this amount based upon the parties' combined parental income, including income exceeding the statutory cap. In August 2020, the plaintiff moved, inter alia, for temporary residential custody of the child. The parties entered into a stipulation of settlement agreeing to suspend the plaintiff's basic child support obligation as set forth in the May 2018 stipulation (hereinafter the temporary custody stipulation). Thereafter, in May 2021, the plaintiff moved, among other things, for an award of child support and for an award of counsel fees. The parties entered into a stipulation dated June 30, 2022, which provided, among other things, that since they were unable to reach a final resolution regarding the issues of child support and counsel fees, those matters would be submitted to the Supreme Court, on papers, for a final determination.
In an order entered December 5, 2022, the Supreme Court, inter alia, granted those branches of the plaintiff's motion which were for an award of child support to the extent of directing the defendant to pay basic child support in the sum of $1,322.87 per month and for an award of counsel fees to the extent of directing the defendant to pay counsel fees in the sum of $60,000. In calculating the defendant's child support obligation, the court utilized the combined parental income, including the amount exceeding the statutory cap. Subsequently, the court issued a money judgment dated March 10, 2023, in favor of the plaintiff and against the defendant in the principal sum of $60,000. The defendant appeals from the order and the money judgment.
"The Child Support Standards Act [Domestic Relations Law § 240(1-b)] sets forth a formula for calculating child support by applying a designated statutory percentage, based upon the number of children to be supported, to combined parental income up to a particular ceiling" known as the statutory cap (Matter of Butta v Realbuto, 214 A.D.3d 973, 974 [internal quotation marks omitted]; see Matter of Freeman v Freeman, 71 A.D.3d 1143, 1144). "'Where the combined parental income exceeds the statutory cap, the court, in fixing the basic child support obligation on income over the statutory cap, has the discretion to apply the factors set forth in Domestic Relations Law § 240(1-b)(f), or to apply the statutory percentages, or to apply both'" (Surage v Surage, 224 A.D.3d 860, 861-862, quoting Moradi v Buhl, 201 A.D.3d 928, 929).
However, the court "must articulate an explanation of the basis for its calculation of child support based on parental income in excess of the statutory cap" (Matter of Butta v Realbuto, 214 A.D.3d at 975 [internal quotation marks omitted]). "'This articulation should reflect a careful consideration of the stated basis for its exercise of discretion, the parties' circumstances, and its reasoning why there [should or] should not be a departure from the prescribed percentage'" (Matter of Monaco v Monaco, 214 A.D.3d 659, 662, quoting Matter of Peddycoart v MacKay, 145 A.D.3d 1081, 1084). "In addition to providing a record explanation for deviating or not deviating from the statutory formula, a court 'must relate that record articulation' to the factors set forth in Domestic Relations Law § 240(1-b)(f)" (Hepheastou v Spaliaras, 201 A.D.3d 793, 794-795, quoting Matter of Gluckman v Qua, 253 A.D.2d 267, 271). "These factors include the financial resources of the custodial and noncustodial parent and the standard of living the children would have enjoyed if the parties had remained together" (Matter of Yaroshevsky v Yaroshevsky, 219 A.D.3d 609, 611, citing Domestic Relations Law § 240[1-b][f]).
The Supreme Court based its decision to calculate child support on the combined parental income exceeding the statutory cap on the parties' agreement in the May 2018 stipulation to apply the statutory percentage to the total combined parental income. However, the parties' agreement in the May 2018 stipulation did not provide an appropriate rationale for the court's calculation of child support on the combined parental income exceeding the statutory cap (see Monaco v Monaco, 214 A.D.3d at 662). Moreover, the record does not demonstrate that the child is not living in accordance with the lifestyle he would have enjoyed had the household remained intact (see Hepheastou v Spaliaras, 201 A.D.3d at 795). Under these circumstances, we find that it is appropriate to apply the statutory percentage to the statutory cap of $163,000, with no further child support obligation based on the combined parental income exceeding that amount (see id.).
There is a "'rebuttable presumption that counsel fees shall be awarded to the less monied spouse'" (Tuchman v Tuchman, 201 A.D.3d 993, 993, quoting Domestic Relations Law § 238). "In exercising its discretion [to award counsel fees], the court must consider the financial circumstances of the parties and the circumstances of the case as a whole, including the relative merits of the parties' positions and whether either party has delayed the proceedings or engaged in unnecessary litigation, such as by employing dilatory and obstructionist tactics, focusing on whether the offending party's unreasonable actions increased the cost of... litigation" (Yakobowicz v Yakobowicz, 217 A.D.3d 733, 736 [citations and internal quotation marks omitted]).
Here, the Supreme Court improvidently exercised its discretion in awarding counsel fees to the plaintiff. Considering, among other things, that the parties settled the plaintiff's motion, inter alia, for temporary residential custody of the child pursuant to the temporary custody stipulation, and that the issues raised by the defendant as to child support were not devoid of merit, the defendant's conduct in the litigation did not constitute dilatory tactics (cf. Cervera v Cervera, 218 A.D.3d 636, 638; Klepp v Klepp, 44 A.D.3d 625, 625-626). Additionally, the defendant was the less-monied spouse, and the award of counsel fees had the effect of exhausting all of her available resources (see Domestic Relations Law § 238; see generally DiNapoli v DiNapoli, 200 A.D.3d 1027, 1031; Turisse v Turisse, 194 A.D.3d 1090, 1093).
DILLON, J.P., CHAMBERS, GENOVESI and VENTURA, JJ., concur.