M.R. v. A.D
| Decision Date | 29 February 2012 |
| Citation | 2012 N.Y. Slip Op. 22051,940 N.Y.S.2d 808,35 Misc.3d 619 |
| Parties | M.R., Plaintiff, v. A.D., Defendant. |
| Court | New York Supreme Court |
OPINION TEXT STARTS HERE
Jason Advocate, Advocate & Lichtenstein, LLP, New York, for plaintiff.
Maxine Shapiro, Eleanor Alter, Kasowitz, Benson, Torres & Friedman, LLP, New York, for defendant.
Motion sequences eight and nine are consolidated for decision.
In this action, plaintiff M.R. (Mother) sought an order of custody of the parties' son, J., and an order of child support from defendant A.D. (Father). After a lengthy trial, the court issued a decision granting parallel custody to the parties, and establishing a schedule under which J. resides primarily with his Father during the school year, and primarily with his Mother during summers and school vacations ( M.R. v. A.D., 32 Misc.3d 512, 928 N.Y.S.2d 429 [Sup. Ct. N.Y. Co. 2011] ). The Mother now moves, in motion sequence 8, for an order directing that the Father pay her attorneys' fees both for her pending appeal of this court's custody determination after trial, and for the remaining proceedings in the trial court on her application for child support. The Father opposes the motion, and, on motion sequence nine, seeks an order granting summary judgment in his favor on the Mother's cause of action for child support, on the theory that, as the primary custodial parent, he cannot be required to pay child support.1 The central issue now before the court is whether the court may award child support to the Mother under the atypical custodial arrangement fashioned by the court. The Court holds that, under the extremely unusual circumstances of this case, awarding child support to the Mother is not precluded as a matter of law, and therefore denies summary judgment to the Father.
The background facts of this matter are set forth in this court's post-trial custody decision dated May 27, 2011 (the Decision), and will not be repeated here, except as relevant to the instant motions.
The parties were never married and have a son together, J., born on November 25, 2003 (now eight years old). The Mother commenced this custody and child support action on April 16, 2009.
The Decision awarded the parties parallel legal custody of J., with the Father having final decision-making authority, after consultation with the Mother, as to education and medical decisions, and the Mother having final decision-making authority, after consultation with the Father, as to summer activity, extracurricular activities, and religion. Both parties are permitted to communicate with and obtain records from J.'s educational and medical providers and to attend all of his school events. Based on the Father's greater ability to provide stability for J., and the Mother's close and loving relationship with J., the Decision set a schedule of parenting time under which J. resides primarily with his Father during the school year, and primarily with his Mother during the summer and other school break periods. This schedule results in J. spending 206 days of the year, or roughly 56%, with his Father, and 159 days, or roughly 44%, with his Mother. However, J. spends a far greater percentage of the days when he is not in school with his Mother. An order consistent with the Decision was signed on July 27, 2011 (the Order).
When the Father filed this summary judgment motion on August 9, 2011, the parties had commenced, but had not yet completed, financial discovery. Except for the limited discovery directed by this court in its October 11, 2011 Order, further discovery was stayed by the filing of the summary judgment motion.
The Mother has filed four Net Worth Statements (NWS) between April 2009 and July 2011. Those reveal the following:
+----------------------------------------------------------------------------+
¦Date of NWS ¦Monthly ¦Monthly ¦Assets ¦Debt ¦
¦ ¦Expenses ¦Income ¦ ¦ ¦
+--------------+----------------+--------------+--------------+--------------¦
¦ ¦ ¦ ¦ ¦ ¦
+--------------+----------------+--------------+--------------+--------------¦
¦4/1/09 ¦$38,247.87 ¦$0 ¦$18,000 2 ¦$95,933.04 3 ¦
+--------------+----------------+--------------+--------------+--------------¦
¦12/17/10 ¦$9,635 ¦$6,000 ¦$1,175 ¦$109,009 ¦
+--------------+----------------+--------------+--------------+--------------¦
¦6/15/11 ¦$9,600 ¦$6,000 ¦$7,500 ¦$248,000 ¦
+--------------+----------------+--------------+--------------+--------------¦
¦7/6/11 ¦$8,242 ¦$5,600 ¦$7,957 ¦$109,009 ¦
+----------------------------------------------------------------------------+
The Mother, now 48, has not worked since in or about 2001, although she is licensed as a real estate agent. All of the income that she lists on her updated Net Worth Statement dated July 6, 2011 (her July 2011 NWS) is child support. Of that amount, $5,000 per month is paid by the Father pursuant to this court's June 29, 2009 pendente lite decision and order as interim support of J., and $600 per month is paid by the Mother's ex-husband as child support for their daughter A. The Mother's July 2011 NWS lists an alleged personal loan from a friend, in the amount of $100,000, and a debt of about $9,000 to Citibank, both of which appear on her two prior NWSs. The July 2011 NWS lists no debt to her attorneys although her prior NWS shows a debt of $128,500 to her attorneys. Her monthly expenses include $4,350 for rent.
The Husband's attorney correctly points out that there are a number of discrepancies between the financial documents obtained in discovery and the Mother's deposition testimony, on the one hand, and the Mother's claims in her various NWSs, on the other.4 For example, the loan of $100,000 that she lists on her NWSs is supported by promissory notes totaling only $28,500, and she also testified at her deposition that she received gifts from the same friend. The Mother also testified at her deposition that another friend also gave her substantial financial assistance, none of which appears on any of the Mother's NWSs. She also gave conflicting statements in her NWSs about valuable jewelry given to her by the Father, but essentially concluded at her deposition that she does not know where these items are at the present time and is not sure what happened to them.
Whatever the discrepancies in the Mother's claims about her financial situation, however, it is undisputed that the Father is, by far, the “monied” parent in this matter. He is 65 years old, and is the owner of a successful company. As this court previously found in the Decision, between approximately 1997 and 2008, he provided enough financial assistance to support the Mother, her mother (who lived with her at that time), A., and J. (who also then resided with the Mother), including giving the Mother $22,000 per month, expensive gifts, and paying for vacations and for 24–hour, 7–day–a–week nannies. The Father currently resides in a luxury Tribeca loft with his girlfriend, their two-year-old daughter, and J. His Net Worth Statement dated March 31, 2009 lists his assets as being worth approximately $20,000,000, with total liabilities of just $211,000. His gross annual income as reported on his 2007 tax return was $4,891,549. His gross annual income as reported on his tax returns in more recent years was $1,981,110 in 2009, and $1,289,799 in 2010.
The Father paid the Mother's first attorney $15,000. On May 27, 2011, this court directed the Father to pay the Mother's attorneys additional interim counsel fees totaling $170,000, based in large part on the Mother's claims in her second NWS.
In her Order to Show Cause, the Mother seeks $93,538.65 in counsel fees “to pursue her appeal of this matter, fees for the appellate printer, fees for the making of this motion and fees for the remainder of this action, including pre-trial discovery and hearing on the issue of child support.” 5 He also states in his moving affirmation that she owed his firm $75,000 at the time the Mother's motion was filed. No copies of her attorneys' bills were attached to her moving papers.
However, attached to the Mother's attorney's reply affirmation are redacted copies of bills dated between July 31, 2011 and October 31, 2011, showing that she owed them $134,080.81 as of October 31, 2011.6 Because of the redactions, it is impossible to determine whether the fees were incurred for the appeal, discovery and trial preparation in the child support matter, the instant motion, or any other category of work. The unredacted portions of the bills list approximately $5,000 in fees incurred in connection with work conducted on her fee motion, none of which is unreasonable on its face. The unredacted portions also list approximately $7,500 in fees related to the discovery directed in this court's October 11, 2011 Order in connection with the Mother's fee motion, also not facially unreasonable in terms of time spent or hourly fees charged. In his reply affirmation, the Mother's attorney requests a total of $76,531.65 in counsel fees, consisting of $45,275 to perfect the appeal, $10,606.65 for the appellate printer's and filing fees, $15,650 in connection with the instant fee motion (including the discovery and deposition directed in this court's October 11, 2011 Order), and $5,000 for opposing the Father's summary judgment motion, although the Mother did not request this relief by cross-motion.
“The proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law” ( Dallas–Stephenson v. Waisman, 39 A.D.3d 303, 306, 833 N.Y.S.2d 89 [1st Dept. 2007] [citing Winegrad v. New York...
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