East v. E

• Decision Date: 18 April 2017
• Citation: 58 N.Y.S.3d 873 (Table)
• Parties: AL E., Plaintiff, v. JOANN E, Defendant.
• Court: New York Supreme Court

58 N.Y.S.3d 873 (Table)

AL E., Plaintiff,
v.
JOANN E, Defendant.

Supreme Court, Kings County, New York.

April 18, 2017.

Kamaras & Joseph, PLLC, by Philip L. Kamaras, Brooklyn, Attorneys for Plaintiff.

Alter, Wolff & Foley LLP, by Jenifer J. Foley, New York, Attorney for Defendant.

JEFFREY S. SUNSHINE, J.

Introduction

The Court is called upon to determine whether it is appropriate to award pendente lite maintenance, child support and counsel fees to the defendant. In considering defendant's pendente lite maintenance application, the Court must consider whether, based upon the factors in DRL 236(B)(5–a), an award of temporary support above the maintenance guideline statutory cap of $178,000 is appropriate given the lifestyle established during the marriage and the expenses detailed by defendant. The Court must also distinguish that calculating an award of maintenance over the cap of $178,000 is not an automatic formula but is based upon a set of factors enunciated in DRL 236(B)(5–1)(h)(1) and is not calculated as child support under the Child Support Standards Act and Cassano v. Cassano (85 N.Y.2d 649, 628 N.Y.S.2d 10 [1995] ). The Court must also address plaintiff's theory that an award of child support would not be appropriate, where the parties share 50–50% parenting time notwithstanding plaintiff reported income of $305,922 and defendant reported income of $19,461 on the parties' joint 2015 tax returns and sets forth the proposition that defendant will not have an incentive to settle if she is awarded child support. Additionally, the Court will address plaintiff's contention that the defendant will not have "skin in the game" if the Court grants defendant's entire application for pendent counsel fees.

Facts

The plaintiff, an attorney, is forty-nine (49) years of age and the defendant, a real estate agent, is fifty-four (54) years of age. The parties were married on January 19, 1999 in a civil ceremony. They have two (2) male children: D. E., who is seventeen (17) years of age; and M.E., who is fifteen (15) years of age.

Procedural Background

The plaintiff commenced this action by filing a summons with notice on April 5, 2016. Defendant filed a notice of appearance on April 26, 2016. A request for judicial intervention was filed on August 2, 2016. The plaintiff filed a verified complaint on May 20, 2016 and the defendant filed a verified answer on July 7, 2016. The matter was scheduled for a preliminary conference on September 22, 2016 but the parties stipulated, on consent, to adjourn that appearance to October 13, 2016.

The parties appeared on October 13, 2016 and entered into a consent scheduling order regarding defendant's order to show cause (motion sequence # 1) and plaintiff's cross-motion (motion sequence # 2). Based upon the representations of the parties as to the outstanding issues of custody and parenting time the Court, on consent, appointed an attorney to represent the parties' two (2) minor children by written order dated October 26, 2016.

On November 3, 2016, the defendant-wife moved by order to show cause (motion sequence # 1) for the following relief: "a) directing that pendente lite Defendant shall have exclusive use and occupancy of the parties' residence located at [omitted] Vanderbilt Avenue, Brooklyn, New York 11205; b) directing that pendente lite Plaintiff shall have exclusive use and occupancy of the parties' residence located at [omitted] Quincy Street, Apartments 1 & 2, Brooklyn, New York 11238; c) establishing, as and for an interim parenting schedule, that each party shall have parenting time with the Children in alternating one week blocks commencing at 6:00 p.m. on Thursdays, and that the parties shall equally divide holidays and the Children's school vacations; d) directing Plaintiff to pay $6,166 per month in pendente lite spousal maintenance to Defendant retroactive to April 26, 2016; e) directing Plaintiff to pay an appropriate amount of pendente lite child support to Defendant retroactive to April 26, 2016; f) directing that pendente lite Plaintiff shall pay the mortgage and home equity loan related to the parties' residence at [omitted] Vanderbilt Avenue, Brooklyn, New York 11205' g) directing that pendente lite Plaintiff shall continue to collect and deposit into his separately titled bank account the rental income from the parties' real estate located at [omitted] Quincy Street, Brooklyn, New York 11205 and [omitted] Halsey Street, Brooklyn, New York 11216, subject to reallocation, and pay the carrying charges on such buildings; h) directing Plaintiff to pay $66,747 for counsel fees incurred by Defendant in connection with this action and prospective counsel fees to be incurred in connection with this motion, without prejudice to Defendant's or her counsel's right to apply for further fees during the pendency of this action; I) directing Plaintiff to pay Defendant's counsel $25,000 toward Defendant's prospective counsel fees; and j) granting to Defendant such other relief as is just and proper ..."

Plaintiff filed an affidavit in opposition and in further support and an attorney's affirmation on November 15, 2016.¹ Defendant filed a reply affidavit and a memorandum of law in support on November 21, 2016.

On November 3, 2016, plaintiff-husband also moved by order to show cause [motion sequence # 2] for the following relief: "a) Granting temporary custody of the parties' two minor children [redacted] to the Plaintiff; 2) Maintaining the parties' current financial status quo, to wit: i) requiring the parties to continue paying the mortgage on their properties from the respective rents collected; 3) Requiring the defendant to rent out for a market rate at least one unit at the property located at [omitted] Vanderbilt Avenue; 4) Appoint a certified appraiser to appraise the parties' real estate located at: i) [omitted] Vanderbilt Avenue; ii) [omitted] Halsey Street; and, iii) [omitted] Quincy Street; 5) For such other relief as the Court may deem just and proper."

Defendant filed an affidavit in opposition to motion sequence # 2 on November 15, 2016. Plaintiff's affidavit in opposition to motion sequence # 1 filed on November 15, 2016, includes his reply to motion sequence # 2.

On November 21, 2016, the Court held a preliminary conference and the parties entered into a consent stipulation resolving the issues of custody and parenting time, appraisals and exclusive use and occupancy.² The parties also stipulated on consent to appointment of a neutral appraiser to value the parties' three (3) Brooklyn properties³ and a neutral appraiser for the plaintiff's law practice⁴ . The payment of the neutral appraisers is being paid 100% by plaintiff subject to reallocation. The Court heard oral argument on the remaining relief requested by the parties in their cross-applications on November 21, 2016. The Court also issued a written order dated November 21, 2016 that pending the Court's written decision on motion sequences # 1 and # 2 the plaintiff shall pay $2,000.00 monthly in interim support, without prejudice, to defendant and that plaintiff was to continue to pay all carrying charges and expenses he was currently paying on behalf of defendant and the parties' children.

The parties were scheduled to appear for a compliance conference on January 30, 2017 but the parties stipulated on consent to adjourn that conference to March 21, 2017 based upon plaintiff retaining new counsel to represent him in this action.⁵ Early in March, counsel for the parties notified chambers staff that they may be resolving the pending pendente lite issues. Chambers staff notified counsel that a written decision on the pending applications was in drafting stage and requested that, in an effort to allocate judicial resources efficiently that counsel notify the Court by written stipulation if they were requesting additional time to resolve the pendente lite issues or if a pendente lite agreement had been reached between the parties. In an effort to to ascertain the status the Court directed the parties to appear for a status conference on Monday, March 13, 2017. On the record on March 13, 2017 counsel for the parties represented that they were no longer engaged in settlement conversations and they were no longer requesting that the Court hold in abeyance issuing a written decision on the issues sub judice.

Parties Contentions

Pendente Lite Maintenance and Child Support

Defendant-wife worked as a producer for a cable television channel earning $90,000 annually and plaintiff-husband had a law firm with a partner when the parties met in August 1998. The parties moved into the apartment owned by defendant after the marriage but that the parties purchased a marital residence in June 1999 using the proceeds from the sale of defendant-wife's separate property apartment from which she netted $205,000 in sale proceeds. Defendant claims she used $125,000 in sale proceeds for the down payment and invested another $80,000 for renovation. She argues that plaintiff did not contribute any money to the down-payment or renovations. She contends that she paid the mortgage for the marital residence, plus all the household expenses and...