A.C. v. D.R. A/K/A D.C.
| Decision Date | 28 March 2011 |
| Parties | A.C., Plaintiffv.D.R. a/k/a D.C., Defendant.D.R.C., Plaintiffv.A.C., Defendant. |
| Court | New York Supreme Court |
OPINION TEXT STARTS HERE
Moran Brodrick & Elliott, Garden City (Robert Brodrick of counsel), for D.R.C.Hoffman, Polland & Furman, New York City (Elliot Polland of counsel), for A.C.ANTHONY FALANGA, J.
Plaintiff wife in Action # 2 (hereinafter referred to as the “wife”), moves by order to show cause for an order 1) pursuant to CPLR § 3212, granting her partial summary judgment on her cause of action for a divorce on the ground that the relationship between the parties is irretrievably broken for a period of at least six (6) months (Domestic Relations Law (DRL) § 170 [7}]), and during the pendency of the action 2) pursuant to DRL §§ 236 B and 240, directing the defendant husband (hereinafter referred to as the “husband”) to pay all carrying charges of the marital residence located at & bullet; & bullet; Cedar Drive, Great Neck, New York, 3) pursuant to DRL § 236B (5–a), directing the husband to pay non-taxable maintenance to the wife in the sum of $12,358.00 per month, effective as of the date of application with any retroactive arrears paid in one lump sum, 4) pursuant to DRL § 240, directing the husband to pay the wife child support of $9,221.00 per month for the parties three (3) unemancipated children with any retroactive areas paid in one lump sum, 5) pursuant to DRL § 240, directing the husband to pay all educational expenses of the children, including tutoring and all expenses related to Hebrew School, 6) directing the husband to pay all past due and future summer camp, summer activities and extra curricular activity expenses of the children; 7) pursuant to DRL § 236, directing the husband to pay all expenses related to the wife's use of a certain 2008 Mercedes Benz R–350 automobile, including loan payments, insurance, gasoline and oil, tires maintenance, repairs and all inspection and registration fees, 8) pursuant to DRL § 236B(8), directing the husband to continue to provide medical, prescription drug and hospitalization insurance for the benefit of the wife and children, 9) pursuant to DRL §§ 236 and 240, directing the husband to pay all uninsured medical, dental, psychiatric, psychological, optometrist, orthodontic, drug and pharmacy expenses of the wife and children, 10) directing the husband to obtain and/or continue in full force and effect a life insurance policy in the principal sum of $2,000,000.00 and naming the wife as irrevocable beneficiary and, 11) pursuant to DRL § 237, directing the husband to pay the sum of $50,000.00 to the wife's attorneys as interim counsel fees. The husband opposes the motion and cross-moves for an order granting the husband a schedule for parenting time with the children, pendente lite, and requiring the wife to surrender the children's passports to the court.
On a prior motion to the court, in which the husband sought full consolidation of Action # 1 and Action # 2, the wife sought joinder of the actions for trial, without consolidation, so that she could pursue the benefits of the newly enacted matrimonial legislation available to all actions commenced after October 12, 2010. By decision and order dated January 18, 2011, the court directed that Action # 1 and Action # 2 be joined for trial and discovery and found, in pertinent part, as follows, denoted in bold print:
In the instant case, the husband wishes to preserve his priority in time, perhaps for commencement date purposes under equitable distribution and the cause of action he has asserted, and that right should not be denied. Similarly, the wife wishes to proceed on her cause of action, either in the event the husband fails on his or, perhaps, under the concept of a dual divorce (see, De Marinis v. De Marinis, 74 A.D.2d 815, 425 N.Y.S.2d 361 [2nd Dept.1980] ). Moreover, she may seek to pursue pendente lite relief under the new statutory guidelines which will only be available to her in Action # 2, commenced after October 12, 2010. A party is not obligated to counter-claim in Action #1 just because the husband has previously commenced such an action against her. Instead, the wife may assert an independent cause of action in a separate suit (Action # 2) that will not be subject to dismissal on the ground that “there is another action pending between the same parties for the same cause of action” (CPLR § 3211[a][4] ), as long as the relief requested is different from that requested in Action # 1 (see, Bofinger v. Bofinger, 107 Misc.2d 573, 435 N.Y.S.2d 652 [1981].) As stated by the Court of Appeals in Motler v. Motler, 60 N.Y.2d 244, 469 N.Y.S.2d 586, 457 N.E.2d 691 (C.A.1983), under CPLR § 3019, counter-claims are permissive and a party may assert her claim against the plaintiff as a counter-claim or by bringing a separate suit. In permitting the wife to withdraw her counter-claim and commence a new action after the passage of the equitable distribution law, the Motler court found that a litigant should not be barred from receiving the benefits of the new law by being denied procedural remedies she is unconditionally entitled to under the CPLR. In the case at bar, the wife has commenced a separate action and she is entitled to pursue her requested relief within said action, without full consolidation.
The court directed a bifurcated trial on the issue of grounds, presently scheduled for April 19, 2011.
In Action # 2, the wife now moves to partake in the benefits of the new matrimonial legislation and seeks, inter alia, pendente lite maintenance and counsel fees as well as partial summary judgment on grounds (DRL § 170[7] ) under the new law. She also seeks pendente lite child support, educational expenses and related relief, as well as payment of all the carrying charges for the parties home, her automobile. medical, dental and life insurance and unreimbursed medical expenses. The court notes that the instant motions were fully submitted on the date of the Preliminary Conference, January 12, 2011, at which time the husband consented to pay the carrying charges on the marital residence pendente lite, including utilities, real estate taxes and homeowner's insurance and to maintain health insurance for the entire family and pay uncovered health expenses, provided the wife uses in network providers. Additionally, he agreed to maintain the existing life insurance policy with a $500,000.00 death benefit. Accordingly those portions of the motion that seek such relief have been resolved. The court notes that the instant motions were submitted before the determination on the prior motion with respect to consolidation was issued, and much of the advocacy herein is repetitive of the positions taken by the litigants on the prior motion.
The background of the parties was set forth in the prior motion, denoted in bold print, as follows: (the court notes that the address of the parties was incorrectly placed in Cedarhurst rather than Great Neck, New York):
Marital and Litigation History
The parties were married on October 4, 1992. The wife is 48 and the husband is 52 years old. The parties have three (3) children: D.C., born September 1, 1997 (age 13), A.C., born July 3, 2000 (age 10) and N.C., born February 17, 2003 (age 7).
The parties and the children reside together in the marital residence, located at & bullet; & bullet; Cedar Drive, Cedarhurst (sic), New York, purchased on May 11, 2000 for $945,000.00. There is no outstanding mortgage on the residence. Title to the premises is in the name of the husband and the wife.
The wife has a masters degree in journalism, attained in 1990 and is presently a homemaker. The husband is a physician and earned his medical degree in 1983. He has monthly gross W–2 income of $15, 833.00, and is employed by A.A. of W., PC.
A preliminary conference was held on January 12, 2011. Pursuant to the so-ordered preliminary conference stipulation, the parties agreed that the husband would pay the carrying charges on the marital residence pendente lite, including utilities, real estate taxes and homeowner's insurance and would maintain health insurance for the entire family and pay uncovered health expenses, provided the wife uses in network providers. Additionally, it was agreed that the husband would maintain the existing life insurance policy with a $500,000.00 death benefit. Grounds was not resolved at the preliminary conference and the parties agreed to attend the P.E.A.C.E Program. The appointment of a real estate appraiser to appraise the marital residence was deferred, however, by separate order, Mark S.Gottlieb, CPA, PC., was appointed to value the husband's interest in the medical practice, with the cost to be paid 100% by the husband, subject to reallocation at trial.
The wife paid a retainer of $15,000.00 with funds claimed to be pre-marital. The husband paid a retainer of $11,000.00 with funds from marital savings.
In support of the remaining issues, the wife now alleges as follows: that it is imperative that the court grant her immediate financial relief because the husband, a highly successful anesthesiologist with annual income exceeding $500,000.00, refuses to provide sufficient direct support to her leaving her without sufficient funds to meet her and the children's reasonable needs; that, while she has certain separate property assets, she should not be compelled to deplete these assets to provide for the family's daily expenses; that the husband seeks to strangle her financially and she has been forced to use credit cards and has accumulated significant debt; that throughout the marriage the husband has earned substantial income as reported on the parties' joint federal income tax returns, as follows:
+-----------------+
¦2006¦$905,654.00 ¦
+----+------------¦
¦2007¦$805,192.00 ¦
+----+------------¦
¦2008¦$620,989.00 ¦
+----+------------¦...To continue reading
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