Michael V. v. Eva S.

CourtUnited States State Supreme Court (New York)
Writing for the CourtJEFFREY S. SUNSHINE, J.
Citation43 N.Y.S.3d 767 (Table)
Decision Date22 August 2016
Parties MICHAEL V., Plaintiff, v. EVA S., Defendant.

43 N.Y.S.3d 767 (Table)

MICHAEL V., Plaintiff,
v.
EVA S., Defendant.

Supreme Court, Kings County, New York.

Aug. 22, 2016.


Kleyman & Associates, P.C., by Val Kleyman, Esq., New York, for Plaintiff.

Mayerson Abramowitz & Kahn, LLP, by Barry Abbott, Esq., New York, for Defendant.

JEFFREY S. SUNSHINE, J.

The following papers numbered 1 to 4 read herein:

Papers Numbered
Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed 1
Opposing Affidavits (Affirmations) 2
Reply Affidavits (Affirmations) 3
Other Papers__Plaintiff's Attorney Affirmation Supplemental 4

Introduction and Procedural Background

The Court is called upon to determine whether it is appropriate to award defendant pendente lite maintenance in compliance with the temporary maintenance guidelines statute in effect from October 12, 2010 to October 25, 2015 when plaintiff commenced this action on August 31, 2015 or whether to limit any award of pendente lite maintenance to defendant to the standard of support plaintiff unilaterally provided to support the family when the parties maintained one household and after plaintiff left the marital residence in August 2015 (see generally prior DRL 236 ). The Court is also called upon to explain that an award of pro rata child care expenses is a statutory add-on in addition to any basic child support award where the custodial parent is employed and that such an award is necessary to ensure that the custodial parent does not suffer future ongoing income inequality as a result of time out of the workforce because he or she could not afford child care expenses required to remain in the workforce.

Plaintiff commenced this action on August 31, 2015 represented by counsel, Anne Glatz, Esq., by filing a summons with notice. Defendant appeared in this action through counsel on September 11, 2015 and demanded a complaint. Plaintiff filed the complaint and on October 26, 2015 defendant filed a verified answer, affirmative defenses and counterclaim for divorce. Defendant filed a Request for Judicial Intervention on March 29, 2016 and the matter was scheduled for a preliminary conference on May 12, 2016. The parties, on consent, requested an adjournment of the preliminary conference from May 12, 2016 to May 26, 2016 which the Court granted.

On May 17, 2016, defendant filed an order to show cause [motion sequence # 1] seeking the following relief: "1) Setting a court-ordered interim access schedule fixing parenting time for Plaintiff; 2) Precluding the parties from taking either of our children to see a therapist, psychologist, psychiatrist or other mental health professional absent prior written agreement by both parties or court order; 3) Directing that neither party shall discuss the litigation or the parties' disagreements about the access schedule with the children; 4) Requiring the parties to share travel itineraries at least seven (7) days in advance of proposed travel with the children during his or her respective parenting time (including date of departure, date of return, flight details, where and with whom the children are staying, and contact information for the children while away); 5) Directing that the Defendant continue to hold the children's passports; 6) Allowing the Defendant to travel to Belgium with the children from July 13, 2016 until August 24, 2016; 7) Directing the Plaintiff to pay temporary child support to Defendant, plus his pro rata share of the children's add-on expenses, including unreimbursed medical expenses, the costs of childcare and extracurricular/afterschool activities expenses; 8) Directing the Plaintiff to pay temporary spousal maintenance to Defendant; 9) Pursuant to Domestic Relations Law 237(a), awarding Defendant counsel fees in connection with this action, including reimbursement to Defendant in the amount of approximately $60,000 for counsel fees incurred from August 31, 2015 (the date Plaintiff commenced this action) to date, and $25,000 in prospective counsel fees; and 10) Granting the Defendant such other and further relief as the Court may find to be just and proper." The Court signed the order to show cause which was returnable on May 26, 2016 at 9:30 a.m. the date previously scheduled for the preliminary conference.

On May 21, 2016 plaintiff discharged his attorney by consent to change attorney form which was subsequently filed on June 8, 2016. The parties, each represented by counsel, appeared on May 26, 2016 and a preliminary conference was held. Plaintiff appeared on that date represented by, Mark Feldman, Esq., his second attorney of record in this action.

The parties entered into an interim stipulation on consent at the preliminary conference resolving the relief requested in items delineated as 1, 2, 3, 4, 5, and 6 of defendant's order to show cause. The parties' May 26, 2016 consent stipulation provides that "pending the Court's determination of Defendant's order to show cause paragraphs 7 and 8, Plaintiff shall continue to pay Defendant $3800 monthly for unallocated support on or before the 1st day of each month, non-taxable to the Defendant." On consent, the remainder of the relief requested by defendant [items # 7 (temporary child support), # 8 (temporary maintenance) and # 9 (interim counsel fees) ] in defendant's pendente lite order to show cause was adjourned more than a month—to June 28, 2016—so the issues could be fully briefed.

Defendant filed an "Attorney Affirmation (Supplemental)" dated June 27, 2016 annexing plaintiff's 2015 tax returns and defendant's calculation of child support and temporary maintenance based upon those tax returns. Defendant's counsel affirmed that the supplemental filing was necessary because plaintiff first provided defendant with his 2015 tax return at the preliminary conference on May 26, 2016 after defendant filed her pendente lite order to show cause.

Several days prior to the adjourn date of June 28, 2016, a date selected by both counsel at the May 26, 2016 preliminary conference, plaintiff through counsel sought a further adjournment of defendant's application asserting that plaintiff needed additional time to oppose defendant's order to show cause. Plaintiff's counsel represented that plaintiff needed an adjourn date in mid-September 2016. Defendant's counsel did not consent to further adjourn defendant's application more than two (2) months into mid-September 2016.

On June 27, 2016, the day before defendant's order to show cause was scheduled for oral argument based upon the parties' May 26, 2016 consent stipulation and briefing schedule, plaintiff's second counsel filed an order to show seeking to be relieved as the attorney of record.

At the court appearance on June 28, 2016 plaintiff's counsel represented that he was not prepared to proceed to oral argument on defendant's pendente lite application, despite the prior one (1) month adjournment, because plaintiff was requesting additional time to file opposition affidavit/affirmations. Plaintiff also represented through counsel that he was seeking an adjournment to obtain new counsel. Plaintiff, through counsel argued that defendant's application for pendente lite support needed to be adjourned into September because he was unavailable for a court appearance until after July 12, 2016, because any court appearance before July 13, 2016 would interfere with his summer parenting time with the children. Defendant's counsel represented that defendant was scheduled to leave on international travel with the children on July 13, 2016 pursuant to the parties' consent stipulation dated May 26, 2016 and that she would not be returning to the United States until late August 2016.

The Court granted plaintiff's request for additional time to file opposition affidavit/affirmations but denied plaintiff's request for an adjourn date to mid-September and directed the parties and counsel to appear for oral argument on July 12, 2016. On June 29, 2016, plaintiff relieved Mark Feldman, Esq. as his attorney of record and substituted in his third attorney of record in this action, Val Kleyman, Esq.

On July 5, 2016, during a conference call with chambers staff, the parties' counsel entered into a stipulated briefing schedule which provided for plaintiff to file opposition to defendant's application in hand before 5:00 p.m. to defendant's counsel on July 8, 2016 and for defendant to file any reply affidavit/affirmations to plaintiff's counsel on July 12, 2016.

Plaintiff filed opposition to defendant's order to show cause by cross motion dated July 7, 2016. Defendant filed a reply dated July 11, 2016. On July 12, 2016, the parties agreed on consent to adjourn the affirmative relief sought by plaintiff in the cross motion to September 9, 2016 so those issues could be fully briefed.1

The parties represented on the record on July 12,...

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