Rouis v. Rouis

• Decision Date: 21 December 2017
• Docket Number: 524936
• Citation: 67 N.Y.S.3d 680,156 A.D.3d 1198
• Parties: Natasha ROUIS, Respondent, v. Jonathan ROUIS, Appellant.
• Court: New York Supreme Court — Appellate Division

156 A.D.3d 1198
67 N.Y.S.3d 680

Natasha ROUIS, Respondent,
v.
Jonathan ROUIS, Appellant.

524936

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: November 15, 2017
Decided and Entered: December 21, 2017

67 N.Y.S.3d 681

Stenger, Roberts, Davis & Diamond, LLP, Wappingers Falls (Thomas R. Davis of counsel), for appellant

Law Office of Patricia T. Bisesto, Esq., White Plains (Patricia T. Bisesto of counsel), for respondent.

Before: Egan Jr., J.P., Rose, Devine, Mulvey and Rumsey, JJ.

MEMORANDUM AND ORDER

Mulvey, J.

Appeal from an order of the Supreme Court (Work, J.), entered April 8, 2016 in Sullivan County, which, among other things, granted plaintiff's motion for pendente lite relief.

Plaintiff (hereinafter the wife) and defendant (hereinafter the husband) were married in 1993 and have two children (born in 1997 and 1999). After the husband departed the marital residence, the wife commenced this action for divorce in August 2014 and the husband counterclaimed for divorce. In September 2015, the wife moved by order to show cause seeking, among other things, temporary maintenance, temporary child support and counsel fees. Supreme Court granted the wife, among other things, temporary maintenance ($1,958 per month) and child support ($2,720 per month) and required the husband to pay for the carrying costs and upkeep of the marital home ($4,859 per month), private school for the youngest child ($848 per month), health insurance for the family ($1,921 per month), interim counsel fees ($10,000) and the wife's vehicle and fuel costs ($644 per month). The husband now appeals.

Initially, the husband contends that the temporary maintenance and child support awards, in combination with the requirement that he pay the carrying costs for the marital home and the expenses related to the wife's vehicle, are excessive and should be reduced. "Generally, the appropriate remedy for any claimed inequity

67 N.Y.S.3d 682

in a temporary award is a speedy trial, and we will only modify such an award where it results in a party's inability to meet reasonable expenses during the pendency of the matrimonial action" ( Jordan v. Jordan, 114 A.D.3d 1129, 1130, 981 N.Y.S.2d 816 [2014] [citations omitted]; see Galvin v. Galvin, 154 A.D.3d 1141, 1142, 62 N.Y.S.3d 223 [2017] ). The parties have advised this Court that the trial in this matter commenced in October 2017, but that a final decision is not expected for several months. We would ordinarily defer ruling on pendente lite relief under these circumstances, permitting the husband to raise these claims at trial (see Giannuzzi v. Kearney, 127 A.D.3d 1350, 1351, 4 N.Y.S.3d 561 [2015] ). However, given that Supreme Court's combined monthly awards amount to an annual award of $155,400 plus $10,000 in interim counsel fees, to be paid from the husband's annual gross income of $183,300.50 (for purposes of maintenance) as calculated by the court based upon his 2013 tax return, we agree that the temporary awards are excessive and should be modified.

In calculating the temporary maintenance award, Supreme

Court applied the statutory formula (see Domestic Relations Law § 236[B][5–a][c][1] ), which "created a substantial presumptive entitlement intended to provide consistency and predictability in calculating temporary spousal maintenance awards" ( Galvin v. Galvin, 154 A.D.3d at 1142, 62 N.Y.S.3d 223 [internal quotation marks, brackets and citations omitted] ). Using the husband's 2013 gross income of $183,300.50¹ and the wife's income of $11,700, the court arrived at a presumptive monthly temporary maintenance amount of $4,387.50. However, with regard to the marital home, the wife was awarded exclusive use and possession and resides there with the younger child; the older child also resides there when home from college. The wife also requested, on top of the presumptive maintenance award, that the husband pay $4,859 per month for the home's carrying costs, including the mortgage, taxes, utilities, insurance and upkeep. The court recognized that it would not be equitable to require the husband to pay full maintenance, child support and all carrying costs on the marital home, so it essentially credited the husband for one half of the carrying costs on the home ($2,429.50 per month) by reducing the presumptive maintenance award by that amount, resulting in a temporary maintenance award of $1,958 per month. Supreme Court then also ordered the husband to pay the full monthly carrying costs on the home ($4,859) in which he does not reside (compare Galvin v. Galvin, 154 A.D.3d at 1143, 62 N.Y.S.3d 223 ["Where, as here, the parties continue to reside together in the marital residence during the pendency of a divorce, we find that it is appropriate to credit the payor spouse with one half of the court-ordered carrying charges."]; Francis v. Francis, 111 A.D.3d 454, 455, 975 N.Y.S.2d 13 [2013] ). When the wife's vehicle expenses are added ($644 per month), this results in a total combined monthly award of...