Freilich v. Freilich

• Decision Date: 13 May 2013
• Docket Number: No. 51309/2012.,51309/2012.
• Citation: 39 Misc.3d 1227,2013 N.Y. Slip Op. 50771,971 N.Y.S.2d 71
• Parties: Alter FREILICH, Plaintiff, v. Naomi FREILICH, Defendant.
• Court: New York Supreme Court

39 Misc.3d 1227
971 N.Y.S.2d 71
2013 N.Y. Slip Op. 50771

Alter FREILICH, Plaintiff,
v.
Naomi FREILICH, Defendant.

No. 51309/2012.

Supreme Court, Kings County, New York.

May 13, 2013.

Laurie E. Mermelstein, Esq., Seidemann & Mermelstein, Brooklyn, Attorney for Plaintiff.

Abe H. Konstam, Esq., Mallow, Konstam, Mazur, Bocketti & Nisonoff, P.C., New City, Attorney for Defendant.

JEFFREY S. SUNSHINE, J.

The following papers numbered 1 to 5 read on this motion:

+-----------------------------------------------------------------------------+
                ¦Papers ¦Numbered ¦
                +-----------------------------------------------------------------+-----------¦
                ¦Notice of Motion/Order to Show Cause/Petition/Cross Motion and ¦1 ¦
                ¦Affidavits (Affirmations) Annexed ¦ ¦
                +-----------------------------------------------------------------+-----------¦
                ¦Opposing Affidavits (Affirmations) ¦2 ¦
                +-----------------------------------------------------------------+-----------¦
                ¦Reply Affidavits (Affirmations/Affidavits) ¦3 ¦
                +-----------------------------------------------------------------+-----------¦
                ¦Other Papers Memoranda of Law ¦4 & 5 ¦
                +-----------------------------------------------------------------------------+
                

Introduction

The question presented herein, inter alia, is where a pendente lite stipulation resolving the issues of child support and maintenance is silent as to the retroactive support, is silence a waiver of the retroactive support?

The wife, Naomi Freilich, moves by cross motion for an order of this court (1) directing the husband to pay the wife $9,039.00 in pendente lite maintenance and child support arrears for the period of May 11, 2012 to June 27, 2012; (2) directing the husband to pay the wife $48,523.00 in pendente lite counsel fees; and (3) directing husband to pay to the wife sanctions in the amount of $11,400.00. At the time of oral argument, the request for sanctions was withdrawn.

Background

The parties were married on November 23, 1994. There are three (3) children of the marriage. The children are currently 17, 12, and nine (9) years of age. The parties physically separated on August 30, 2011.

Originally, on May 11, 2012, the wife moved by order to show cause seeking, inter alia, pendente lite child support and pendente lite maintenance. The husband opposed the order to show cause. On June 19, 2012, the matter came before this court. At that time the parties' entered into an agreement resolving the pendente lite application. Counsel, on the record in open court in the presence of the parties, spread their agreement on the record and thereafter, settled an order on notice which was signed on October 23, 2012. The wife's counsel stated on the record on June 19, 2012 that

[t]he parties agree that during the pendency of the above action or until further order of the Court, plaintiff shall pay to the defendant Mrs. Freilich, $8,500 per month as taxable maintenance to defendant [wife] and deductible to plaintiff [husband] and $4,100 per month beginning June 27, 2012 in pendente lite child support.

The order which was settled on notice states, in part, that it is

ORDERED that Plaintiff is directed to pay the Defendant pendente lite child support for the two children, David and Isaac, FOUR THOUSAND ONE HUNDRED DOLLARS ($4,100) per month beginning June 27, 2012; and it is further ...

The parties' pendente lite agreement for maintenance and child support was silent on the issue of retroactivity. The wife now seeks the child support and maintenance arrears for the period of May 11, 2012, the date of the initial application, until June 27, 2012, the date that payment commenced pursuant to the parties agreement. She avers that the arrears total $18,696.72 with credits in the amount of $9,657.20 ¹. Accordingly, the wife seeks an award for child support and maintenance arrears in the amount of $9,039.57 ($18,696.72 - $9,657.20 = $9,039.57)

On June 19, 2012, the issue of pendente lite counsel fees was decided by this court on the record and thereafter, reduced to a written order dated October 23, 2012, along with the pendente lite support and access issues which were resolved on consent, as discussed herein. The pendente lite counsel fee award to be paid by the husband to the wife was for the amount of $15,000.00.

At this time, the wife seeks an additional counsel fee award in the amount of $48,523.00. Pursuant to the retainer agreement annexed to the wife's cross motion, defendant's counsel charges an hourly rate of $600.00. The total amount billed by counsel as of November 2012 was $63,523.00. The wife received $15,000.00 pursuant to this court's first counsel fee award and the wife paid a total of $43,000.00 to counsel. The wife avers that her father initially paid $38,000.00 of the $43,000.00 paid to her counsel but these monies are a loan. She further avers that she has repaid $20,000.00 of the $38,000.00 to her father which the husband contends was from marital funds. The wife's counsel has received a total of $58,000.00 as of November 2012. Upon review of the billing records of counsel annexed to the application, counsel already had billed $51,283.11 by the time of the initial application for counsel fees which was made in June, 2012. Since that time counsel billed an additional $12,515.37 through November 2012.

The husband avers that his income in 2011 was $361,00.00 and that it should be approximately the same in 2012. The annual obligation agreed to for temporary maintenance and child support is $151,200.00. The husband additionally agreed to pay for the school tuition, $34,800.00 annually, and summer camp, $7,200.00 annually. These add-on obligations total $42,000.00. Furthermore, the husband avers that he owes taxes to New York, City, New York State and the Internal Revenue Service in the amount of $132,871.91. To support his claim that he has tax debts the husband relies solely on his affidavit of net worth. This Court notes that there is no indication that the husband is repaying the debt at this time.

The wife avers that the only income she has is the temporary maintenance agreed to in the amount of $8,500.00 each month. The wife contends that she is obligated to pay from those funds three (3) mortgages on the martial home totaling $49,898.64 annually ($4,158.22 each month) and the maintenance and taxes for the parties' summer home located in Woodridge, New York which is $10,000 .00 each year. The husband contends that the wife has full use of that summer home and has the ability to rent the home to derive further income.

This Court notes that there has been substantial motion practice to ascertain the sources of income of both parties which includes multiple applications to quash third party subpoenas.

Discussion Retroactive Support

It is well settled that pursuant to Domestic Relations Law (DRL) section [B] [7][a] temporary child support payments are retroactive to the date of service of the first application ( seeDRL § 236[B][7][a] [“Such order shall, except as provided for herein, be effective as of the date of the application therefor, and any retroactive amount of child support due shall be support arrears/past due support and shall be paid in one sum or periodic sums, as the...