Opinion
No. 63296.
02-14-2017
R.J.D., Plaintiff, v. T.M.D., Defendant.
Law Offices of Newell & Klingebiel, Glens Falls (Nicole C. Fish of counsel), for plaintiff. Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls (Paula Nadeau Berube of counsel), for defendant.
Law Offices of Newell & Klingebiel, Glens Falls (Nicole C. Fish of counsel), for plaintiff.
Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls (Paula Nadeau Berube of counsel), for defendant.
ROBERT J. MULLER, J.
The parties were married in 1990 and have three children: A.D. (born in 1993); B.D. (born in 1997); and M.D. (born in 2002). Plaintiff operates and, or, owns the Texas Road House Barbeque restaurant located at 105 Wolf Road in the Town of Colonie, Albany County. Defendant is not presently employed.
This is defendant's motion by Order to Show Cause, which seeks the following pendente lite relief:
(1) an Order awarding her temporary spousal maintenance in the amount of $568.00 per week retroactive to the date of commencement of this action, less any sums previously paid by plaintiff toward his maintenance obligation;
(2) an Order awarding defendant exclusive use of the 2012 Dodge Avenger currently in her possession;
(3) an Order awarding her expert fees in the amount of $475.00 for appraisal of the marital residence;
(4) an Order awarding her expert fees in the amount of $5,000.00 for appraisal of the Texas Roadhouse business;
(5) an Order awarding her interim counsel fees in the amount of $10,000.00;
(6) an Order prohibiting plaintiff from transferring, selling or in any way disposing of either her personal belongings or the furnishings in the marital residence;
(7) an Order requiring plaintiff to timely pay any marital debts, including the mortgage, utilities, real property taxes, home owner's and automobile insurances, Chapter 13 payments and medical or credit card expenses; and
(8) an Order allowing defendant to go to the marital residence with a police officer to obtain her personal property.
Upon review and consideration of all submissions each item of relief is now addressed in seriatim.
Temporary Maintenance
In late November 2016 defendant filed a motion seeking "emergency spousal support from Family Court as she was in danger of becoming a public charge." The motion was referred to the Support Magistrate and ultimately heard on December 16, 2016, resulting in a Temporary Order whereby plaintiff was directed to pay maintenance to defendant in the amount of $175.00 per week.
Defendant contends that plaintiff earns $110,000.00 per year as owner and operator of the Texas Roadhouse restaurant in the Town of Colonie, Albany County. Defendant further contends that she is not employed, having stayed home with the children during the parties' marriage. Finally, defendant contends that she cannot work in any event, as she has been disabled since October 2015 when she "was struck by a car." Based upon this, defendant requests temporary maintenance in the amount of $568.00 per week retroactive to the date of commencement of the action—November 9, 2016—less any sums previously paid by plaintiff toward his maintenance obligation.
In opposition, plaintiff contends that temporary maintenance in the amount of $175.00 per week is sufficient under the circumstances. According to plaintiff, he supports the parties' two youngest children, both of whom reside with him in the marital residence; provides medical insurance for the entire family; and pays all of the marital debts, including the parties' mortgage, car payments, utilities, real property taxes, homeowner's and car insurance—all without any assistance from defendant. Plaintiff has also submitted proof that he is currently experiencing financial difficulty, with the holder of the parties' mortgage threatening a possible foreclosure action if the $11,000.00 in arrears are not paid soon.
Plaintiff further contends that defendant was employed on a part-time basis during the marriage and is fully capable of working at this time. Plaintiff has submitted copies of defendant's W–2 forms from 2009 to 2015, as well as three certifications she has obtained in the medical field. Plaintiff has also submitted several photos and videos taken of defendant this past summer, which depict her dancing, riding a horse, going down a water slide and jumping from a cliff into a lake, among other things. According to plaintiff, defendant had surgery in 2015 but is now fully recovered. He is unaware of her ever being hit by a car. Plaintiff is of the opinion that defendant does not want to work because she "decided to become a full-time alcoholic."
Finally, plaintiff contends that defendant is not at risk of becoming a public charge. According to plaintiff, she chose to return to New Jersey to live with her mother because she has always wanted to return to New Jersey. She is now engaged to another man and the two recently visited Queensbury, staying at the Great Escape Lodge. Plaintiff has submitted copies of many posts on defendant's Facebook page which confirm both her desire to return to New Jersey and her recent engagement.
Domestic Relations Law § 236(B)(5–a)(e) provides as follows:
"The court shall order the guideline amount of temporary maintenance up to the income cap in accordance with [Domestic Relations Law § 236(B)(5–a)(c) ], unless the court finds that the guideline amount of temporary maintenance is unjust or inappropriate, which finding shall be based upon consideration of any one or more of the following factors, and adjusts the guideline amount of temporary maintenance accordingly based upon such consideration:
"(a) the age and health of the parties;
"(b) the present or future earning capacity of the parties, including a history of limited participation in the workforce;
"(c) the need of one party to incur education or training expenses;
"(d) the termination of a child support award during the pendency of the temporary maintenance award when the calculation of temporary maintenance was based upon child support being awarded and which resulted in a maintenance award lower than it would have been had child support not been awarded;
"(e) the wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration;
"(f) the existence and duration of a pre-marital joint household or a pre-divorce separate household;
"(g) acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment ...;
"(h) the availability and cost of medical insurance for the parties;
"(i) the care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party's earning capacity;
"(j) the tax consequences to each party;
"(k) the standard of living of the parties established during the marriage;
"(l) the reduced or lost earning capacity of the payee as a result of having forgone or delayed education, training, employment or career opportunities during the marriage; and
"(m) any other factor which the court shall expressly find to be just and proper."
Here, plaintiff's 2016 income tax return indicates that he earned $108,036.00. Using this figure, the presumptively correct amount of temporary maintenance to be paid by plaintiff to defendant—who currently earns nothing—is $623.28 per week. Under these circumstances, however, the Court chooses to deviate from this amount and awards defendant $311.64 per week in temporary maintenance, which is half the presumptively correct amount. The record clearly demonstrates that defendant—who appears to have serious alcohol abuse issues—went to New Jersey of her own accord and virtually abandoned her responsibilities here. She left plaintiff to deal with the children, the marital residence and everything else. There appears to be nothing preventing her from obtaining meaningful employment at this time, except perhaps her alcohol abuse. Awarding her $311.64 per week will give her slightly over $16,000.00 per year, which amount she can presumably supplement with part-time—if not full-time—employment.
According to the reply affidavit submitted by counsel for defendant, she "has an appointment with a certified drug and alcohol center for evaluation in New Jersey on February 14, 2017."
Based upon the foregoing, this aspect of the motion is granted to the extent that defendant is entitled to temporary maintenance in the amount of $311.64 per week retroactive to the date of commencement of the action, less any sums previously paid by plaintiff toward his maintenance obligation.
2012 Dodge Avenger
Plaintiff has not opposed this aspect of the motion. The application is granted and defendant is awarded exclusive use of the 2012 Dodge Avenger currently in her possession.
Appraisal of Marital Residence
Defendant contends that she is the non-monied spouse and requires expert fees in the amount of $475.00 for an appraisal of the marital residence. In support of this request, defendant has submitted the affidavit of James Beaty—a licensed real estate appraiser—who estimates that "[his] fee for appraising the property [would be] $450.00."
Plaintiff contends that defendant is misrepresenting her finances and "has access to funds through her mother." Specifically, plaintiff contends that "[d]efendant has represented that her mother is holding her inheritance from her father's death and[,] further, that she is doing so to keep this money out of the marital estate.' Plaintiff estimates the amount withheld to be "approximately $500,000.00."
Pursuant to Domestic Relations Law § 237(a), there is a rebuttable presumption that the non-monied spouse is entitled to "expenses of experts." Domestic Relations Law § 237(d) then provides as follows:
"The term ‘expenses' as used in [Domestic Relations Law § 237(a) ] shall include, but shall not be limited to, accountant fees, appraisal fees, actuarial fees, investigative fees and other fees and expenses that the court may determine to be necessary to enable a spouse to carry on or defend an action or proceeding under this section. In determining the appropriateness and necessity of fees, the court shall consider:
"1. The nature of the marital property involved;
"2. The difficulties involved, if any, in identifying and evaluating the marital property;
"3. The services rendered and an estimate of the time involved; and
"4. The applicant's financial status."
Here, plaintiff has failed to offer any evidence whatsoever in support of his contention that defendant has access to $500,000.00. With that said, there can be no dispute that defendant is the non-monied spouse. Inasmuch as the marital residence is a principal component of the marital estate and must be appraised—absent an agreement as to its value—the Court finds that defendant is entitled to appraisal fees (see Domestic Relations Law § 237[d] ). Based upon Beaty's estimate of the appraisal fee, the Court further finds that defendant is entitled to fees in the amount of $450.00, rather than the requested $475.00.
This aspect of the motion is therefore granted to the extent that defendant is awarded appraisal fees in the amount of $450.00.
Appraisal of Texas Roadhouse
Defendant next contends that she is the non-monied spouse and requires expert fees in the amount of $5,000.00 for an appraisal of the Texas Roadhouse business. In support of this request, defendant has submitted the affidavit of Michael Laney—a certified public accountant—who indicates that he "would require a retainer of $5,000.00 to review the records, place a value on the business and determine annual income therefrom."
Plaintiff asserts that he does not own the Texas Roadhouse business and, as such, no appraisal is necessary. According to plaintiff, he is employed by Texas Roadhouse as a managing partner with a base salary of $45,000.00 per year plus a bonus comprised of 10% of all pre-tax income realized each month by the restaurant he manages. In support of this contention, plaintiff has submitted a copy of his Employment Agreement, as well as a signed statement from Vickie Elder—the Director of Payroll for the Texas Roadhouse—which states as follows: "I am writing to verify that [R.J.D.] is a Managing Partner of our Albany, N.Y. Texas Roadhouse location. [R.J.D.] has no interest or ownership in our company."
While the Employment Agreement submitted by plaintiff is unsigned and Elder's statement is unsworn, these documents nonetheless suggest that plaintiff does not have an ownership interest in the Texas Roadhouse business. Therefore, while there is a rebuttable presumption that defendant is entitled to accountant fees (see Domestic Relations Law § 237[a], [d] ) such an award is not prudent at this juncture. If defendant obtains evidence in the future which suggests that plaintiff does in fact have an ownership interest in the Texas Roadhouse business, she may file a successive motion for accountant fees at that time.
This aspect of the motion is denied in its entirety without prejudice for renewal.
Interim Counsel Fees
Defendant seeks an award of interim counsel fees in the amount of $10,000.00. In support of this request, counsel for defendant has submitted an affidavit indicating that defendant paid an initial retainer of $2,750.00, which "she borrowed ... from her mother." According to counsel, this retainer has now been exhausted and additional monies are necessary to proceed with the defense of this action. Counsel states that "[t]he requested interim [counsel] fees of $10,000 will certainly not cover all of ... defendant's [counsel] fees in this matter, but will at least entitle her to receive legal services until a further request for [counsel] fees can be had at or before trial."
Plaintiff contends that defendant has sufficient assets to pay her own counsel fees. He further contends that he will not be able to continue paying all of the marital debts if he is required to pay $10,000.00 in counsel fees to defendant.
Initially, the Court observes that defendant was not entitled to an award of counsel fees based upon the failure to attach a copy of counsel's written retainer agreement to her statement of net worth (see Domestic Relations Law § 237[a] ; 22 NYCRR 1400.3 ; Curley v. Curley, 125 A.D.3d 1227, 1231 [2015] ). Nevertheless, under Domestic Relations Law § 237(a), there is "a rebuttable presumption that counsel fees shall be awarded to the less monied spouse." This defect has since been remedied and a copy of the written retainer agreement is now provided to the Court. Defendant is entitled to an award of counsel fees. An award of $5,000.00 is more appropriate at this juncture. Defendant may file an additional motion for interim counsel fees if the same becomes necessary.
Based upon the foregoing, this aspect of the motion is granted to the extent that defendant is awarded $5,000.00 in interim counsel fees, having complied with Domestic Relations Law § 237[a] ; 22 NYCRR 1400.3 ; Curley v. Curley, 125 A.D.3d 1227, 1231 [2015] ).
Request to Prohibit Transfer of Personal Belongings
Plaintiff has not opposed this aspect of the motion. The relief requested is granted and plaintiff is prohibited from transferring, selling or in any way disposing of either defendant's personal belongings or the furnishings in the marital residence.
Marital Debts
Plaintiff has not opposed this aspect of the motion. The relief requested is granted and plaintiff is directed to timely pay all marital debts.
Request to Obtain Personal Belongings
The defendant vacated the marital residence on November 16, 2016 after being served with an ex parte Order of Protection issued by the Family Court of Warren County (Kershko, J.). Defendant asserts that she did not have sufficient time to gather all of her personal belongings at that time and, as such, requests permission to return to the marital residence with a police officer to gather these belongings.
Plaintiff objects to this request, contending that defendant has caused extensive damage to the marital residence in the past and he is afraid she will do so again. In support of this contention, plaintiff has submitted a video of damage allegedly caused by defendant in what appears to be the basement of the marital residence. The video—which depicts several broken pictures and other damaged items strewn across the floor—was apparently taken by plaintiff as defendant walked him through the damage and explained what she had done, stating that she "went nuts."
Although plaintiff's concerns may be well founded, defendant will likely be unable to damage the marital residence if she is accompanied by a police officer and this aspect of the motion is therefore granted. The defendant shall compile a list of the belongings she plans to take during this visit and provide the same to plaintiff, who can then advise the Court of any objectionable items before this event occurs. The parties are directed to agree upon a time for defendant to visit the marital residence accompanied by a law enforcement officer
Finally, although plaintiff has sought certain affirmative relief at the conclusion of his opposing affidavit the requests are not being considered. The Court will entertain such relief upon a proper and timely further motion.
The within constitutes the Decision and Order of this Court and it is therefore SO ORDERED
(1) That defendant is entitled to temporary maintenance in the amount of $311.64 per week retroactive to the date of commencement of the action, less any sums previously paid by plaintiff toward his maintenance obligation,
(2) That defendant is awarded exclusive use of the 2012 Dodge Avenger currently in her possession,
(3) That defendant is awarded appraisal fees in the amount of $450.00,
(4) That defendant's request for accountant fees in the amount of $5,000.00 is denied without prejudice,
(5) That defendant is awarded $5,000.00 in interim counsel fees,
(6) That plaintiff is prohibited from transferring, selling or in any way disposing of either her personal belongings or the furnishings in the marital residence,
(7) That plaintiff shall timely pay all marital debts, including the mortgage, utilities, real property taxes, homeowner's and automobile insurances, Chapter 13 payments and medical or credit card expenses, and
(8) That defendant is permitted to go to the marital residence at an agreed time and date, accompanied by a law enforcement officer, to obtain her personal property, following defendant's submission to opposing counsel a list of those items of personal property which shall be agreed upon and it is further
ORDERED that any relief not specifically addressed herein has nonetheless been considered and is expressly denied.
The original of this Decision and Order has been filed by the Court together with the Order to Show Cause dated January 26, 2017 and the submissions enumerated hereinbelow. Counsel for defendant is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon all parties in accordance with CPLR § 5513.
Papers Submitted:
1. Order to Show Cause dated January 26, 2017;
2. Affidavit of T.M.D. sworn to January 9, 2017 together with Exhibits "A" through "F";
3. Affidavit of James Beaty sworn to January 4, 2017 together with Exhibit "A";
4. Affidavit of James Michael Laney sworn to January 9, 2017 together with Exhibit "A";
5 Affidavit of Paula N. Berube, Esq., sworn to January 23, 2017 together with Exhibit "A";
6. Opposing Affidavit of R.J.D. sworn to February 6, 2017 together with Exhibits "A" through "X" and the
7. Reply Affidavit of Paula N. Berube, Esq., sworn to February 8, 2017 together with Exhibit "A".