P.S. v. M.S.

• Decision Date: 01 June 2016
• Docket Number: No. 2038/2014.,2038/2014.
• Citation: 50 N.Y.S.3d 27 (Table)
• Parties: P.S., Plaintiff, v. M.S., Defendant.
• Court: New York Supreme Court

50 N.Y.S.3d 27 (Table)

P.S., Plaintiff,

v.M.S., Defendant.

No. 2038/2014.

Supreme Court, Orange County, New York.

June 1, 2016.

Michelle Ellerin, Esq., counsel for plaintiff.

Howard Kave, Esq., counsel for defendant.

MARIA S. VAZQUEZ–DOLES, J.

The following papers numbered 1–22 read on Defendant's Motion to Renew and Reargue pursuant to CPLR § 2221 :

Notice of Motion/Affidavit of M.S. dated 9/15/15 Affirmation of Howard Kave, Esq., dated 9/15/15/Exhibits A–F & M 1–10

Affidavit in Opposition of P.S. dated 10/19/15 Affirmation of Michele Ellerin, Esq., dated 10/19/15/Exhibits A–F 11 –18

Reply Affirmation of Howard Kave, Esq., dated 10/28/15 Affidavit of M.S. dated 10/29/15/Exhibits A–B 19–22

Background:

This action for divorce and ancillary relief was commenced by Plaintiff/husband with the filing of a Summons and Verified Complaint on March 18, 2014. Plaintiff seeks a judgment of absolute divorce on the grounds that the marriage has irretrievably broken down pursuant to DRL § 170(7). Defendant filed a Verified Answer and Counter Claim also seeking a judgment of divorce pursuant to DRL § 170(7) on June 3, 2014. The request for judicial intervention was filed on November 28, 2014. A preliminary conference was held on February 20, 2015. On consent and so-ordered by this Court the parties agreed to a visitation arrangement, where the un-emancipated children would alternate weeks with each parent. Additionally, the husband agreed to maintain all family health, dental, and life insurance policies provided through his employer and agreed not to enter the marital residence without providing advanced notice within forty-eight (48) hours.

The parties were married on October 22, 1983, this is a thirty-two (32) year marriage. There are three children born to this marriage, to wit: El. S., born March 29, 1992 (24 years old-emancipated), C.S., born March 12, 1997 (19 years old), and E.S., born March 16, 2000 (16 years old). Both Husband and wife are forty-nine (49) years old. Both parties are in good health. As of July 2014, the wife lives in the marital residence located in New Windsor, N.Y. and the husband has been renting an apartment in Cornwall, N.Y. since he moved out in June 2014. The parties' two (2) un-emancipated children split time between each of their parent's household. At present, both the oldest and middle child are enrolled in college. At the time of the filing of the first pendente-lite motion, the wife worked as a Veterinary Technician for a local veterinary facility for approximately thirty(30) hours per week, and the husband worked full time as a Director of Environmental Health and Safety for Pfizer, Inc.. Husband holds a B.S Degree received in 1985, an MPH in 1992 and an MBA earned in 2005. Wife earned an AAS in 1985 and is a licensed NYS Veterinary Technician.

Husband's base salary is approximately $175,500 and he receives a bonus at the end of the year which varies. When the first motion was brought on March 23, 2015, Wife was earning $18.00 per hour as a veterinarian technician and working about 30 hours per week. Her own affidavits/affirmations projected, based upon her then current earnings¹ , that her annual income would be $27,846.00. The Court used Defendant's sworn assertions as a fair part time annual salary, denied Husband's request to use only his base salary of $169,000, and instead used $221,000 in considering support. The Court found that an award to Defendant in the amount of $5,103.48 spousal support was unjust and inappropriate when considering that Plaintiff/Husband was paying for mostly all the following expenses for Defendant and the children, without the Wife's assistance; to wit, the mortgage, taxes and insurance of the marital home, the Home Equity Line of Credit, the children's college education and expenses, the health insurance and all unreimbursed medical expenses for the entire family, the automobile insurance for Defendant and the children, the family charges on the Kohl's credit card, the USAA credit card, Netflix, Walmart charges, the cells phones and gas for all four vehicles, the pet veterinarian bills, lawn service for the marital home, the EZ-pass for all vehicles, the alarm system for the marital home, the Sirius XM radio for Defendant, the hotel room for Defendant when she visited the daughter at college, the Sports Club for the children, and his own rent so the children would have a place to stay with him during the one half access time. Therefore the Court determined that a deviation from the guidelines was appropriate and granted zero(0) spousal or child support. The Court did, however, Order that Plaintiff continue the financial status quo by paying all the bills he has historically paid since leaving the marital home.

On August 10, 2015, unbeknownst to the Court, Defendant/Wife was discharged from her employment as a veterinary technician, because her position was eliminated. The Decision of the Court was rendered on August 21, 2015.

On September 21, 2015, Defendant/wife filed the instant motion and moved to reargue and renew.

Motion to Reargue:

Defendant first argues that the Court misapprehended either law or facts because it did not grant an award of maintenance or child support to the Defendant based purely on the presumptive guidelines. This Court disagrees. "The formula to determine temporary spousal maintenance that is outlined in Domestic Relations Law § 236(B)(5–a)(c) is intended to cover all of the payee spouse's basic living expenses, including housing, costs of food and clothing, and other usual expenses." Su v. Su, 128 A.D.3d 949, 950, 11 N.Y.S.3d 611 (2d Dept 2015). The Court did not overlook or misapprehend any facts or law, but rather found that the presumptive guideline amount of maintenance was unjust and inappropriate under the facts of this case as Plaintiff/Husband was paying almost all of the bills of all the members of the household. Here, the wife and the children's needs were being met and Defendant/wife was employed and earning a salary which she could use for all other incidentals not covered by the Plaintiff. Additionally, Plaintiff/husband had his own expenses to pay in his separate residence. The new maintenance law requires the Court to not only determine the presumptive amount, but then decide if this amount is unjust or inappropriate. (See Vistocco v. Jardine, 116 A.D.3d 842, 985 N.Y.S.2d 578 (2nd Dept.2014)citing Khaira v. Khaira, 93 A.D.3d 194, 938 N.Y.S.2d 513(1st Dept.2012). In this case the Defendant had one, maybe two jobs, some inheritance from a death in her family, and almost all of her living expenses paid for by Plaintiff. (See Petrie v. Petrie, 143 A.D.2d 258, 532 N.Y.S.2d 283 (2d Dept.1988) which discusses how inheritance is a resource factor to consider in maintenance.) Although Defendant is unhappy with this result, the Court used its discretion and determined that the presumptive award was unjust and inappropriate and deviated from that guideline amount. Su v. Su, 128 A.D.3d 949, 11 N.Y.S.3d 611 (2d Dept.2015), and Scott v.Ilona, 31 Misc.3d 353, 915 N.Y.S.2d 834 (Sup Ct Kings Cty 2011). Accordingly, it is hereby

ORDERED that Defendant's motion to reargue is denied.

Motion to Renew:

Defendant/Wife next moves to renew the prior motion because there is ‘new’ information which came to light after her first motion was brought and would have directly impacted the Court's decision, to wit: on August 10, 2015 she became unemployed. She argues that this new information is sufficient cause to renew her pendente lite motion for support. She argues that as a result of the loss of these jobs, she is "totally without income, while her husband presumably continues to earn over $220,000 per year." (Aff. of Howard Kave, Esq. ¶ 8–11).

The Court disagrees with Defendant's understanding of CPLR § 2221(e). The case law interpreting the ‘new’ evidence which the statute refers to, must have existed at the time the original motion was filed, (3/23/15), but was not discovered until after the decision was rendered; in essence, newly discovered evidence. This is clear from the 1999 amendments which added subdivision (e)(3) and requires a reasonable justification for failing to present the new facts on the original motion. See Sobin v. Tylutki, 59 A.D.3d 701, 873 N.Y.S.2d 743 (2nd Dept.2009). In Sobin, the Court stated "The Supreme Court lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original motion (citing Worrell v. Parkway Estates, LLC, 43 A.D.3d at 437, 840 N.Y.S.2d 817 (2nd Dept.2007) ). In this case, defendant could not possibly justify why the new information was not included in the original motion because this information did not exist until August 10, 2015 when Defendant became unemployed. The fact that she lost those jobs is not ‘new evidence’ under CPLR § 2221(e), but rather a change in circumstances which occurred well after the original motion was made. Therefore, the proper procedural method which should have been used was a motion to modify based upon a substantial change in circumstances. Accordingly, it is hereby

ORDERED that Defendant's motion to renew is denied.

Motion to Modify Spousal and Child Support:

Notwithstanding the above denial of Defendant's motion, the Court recognizes that Defendant's papers, although cloaked in the form of one to renew and reargue, presented arguments for an upward modification. In an effort to conserve both judicial resources and the resources of these two litigants, the Court will deem the papers submitted to be a motion for an upward modification due to a substantial change in circumstances.² In doing so, the Court will also take into consideration the letters dated March 10, 2016 from both Plaintiff and Defendant's counsel regarding Defendant's recent employment and Plaintiff's exercise of stock options to pay off joint marital debt and college expenses.

Defendant's change in circumstance argument relies heavily upon...