Recitation as required by CPLR § 2219(a), of the papers considered in review of the Notice of Motion for an Order (1) pursuant to DRL § 236, directing to provide continuing financial support for the family pendete lite, in the manner in which he provided it prior to the commencement of this action by continuing to pay the monthly mortgage at the Jamaica Avenue premises by depositing the sum of $2,820.00 into Plaintiff's checking account or paying it directly and paying plaintiff the sum of $7,860.00 as a consequence of his failure to make prior payments; directing Defendant to deliver to Plaintiff the rental income of $900.00 per month from the tenant residing in the 78th Avenue basement apartment rectroactive to August 1, 2010; directing Defendant to pay his share of the joint VISA credit card bill in the sum of $900.00 per month retroactive to August 1, 2010; directing Defendant to pay the sum of $15,528.75 per month for his share of the marital expenses; (2) pursuant to DRL § 237 granting an award of counsel fees, costs, and expenses to the Plaintiff in the sum of $55,326.50 with leave to apply for additional fees; and (3) granting such other, relief and/or different relief as to this Court may seem just and proper in the premises; and Cross-Motion for an Order (1) directing Plaintiff to pay seventy-five percent of all carrying charges at the marital residence, including but not limited to the mortgage, taxes, electricity, fuel, and phone; directing Plaintiff to pay one hundred percent of the cost of food, her car payment, her car insurance, the life insurance policy held in Plaintiff's name and Plaintiff's disability insurance; and directing Plaintiff to pay fifty percent of for clothing, camp, tutors, school tuition and taxes for 2009; (2) awarding Defendant the sum of twenty-five thousand dollars as and for counsel fees [*2]incurred by Defendant based upon Plaintiff's frivolous nature of her application; (3) adjudging the Plaintiff in contempt of Court by reason of her wilful failure to cash in the Coca-Cola stock as she was required to do, and for not cooperating in the listing and sale of property to provide funds to each of the parties; pursuant to the Order dated June 9, 2010, and an Order directing Plaintiff to immediately pay said amount; (4) an Order directing the Plaintiff to reinstall the cameras in the maritall residence; (5) denying Plaintiff's motion in its entirety; and (6) such other and further relief as this Court deems just and proper; and Order to Show Cause for an Order: (1) pursuant to DRL § 236, directing Defendant to make payment forthwith for certain specific expenses that he has customarily paid during the course of the marriage; (2) modifying the Order dated July 20, 2010 directing the Defendant to make all further payments as may be required to the court appointed forensic psychologist; (3) granting leave to Plaintiff to sell the Coca-Cola Stock; and (4) granting such other, further and/or different relief as to this Court may seem just and proper in the premises.

PapersNumbered

Notice of Motion, Affirmation and Affidavit annexed...............................1-3

Exhibits Annexed to Notice of Motion......................................................4a-4l

Cross Motion, Affirmation and Affidavit annexed....................................5-7

Exhibits annexed to Cross Motion............................................................8a-l

Affidavit in Opp. To Cross Motion & Reply Affidavit............................9

Exhibits annexed to Aff. In Opp. & Reply Affidavit..................................10a-10c

Reply Affidavit.............................................................................................11

Exhibits annexed to Reply Affidavit............................................................12a-12b

Order to Show Cause, Affirmation and Affidavit annexed..........................13-15

Exhibits annexed to Order to Show Cause...................................................16a-16h

Affidavit in Opposition.................................................................................17

Exhibits annexed to Affidavit in Opposition.................................................18a-18c

Upon the foregoing cited papers, the Decision/Order on the Court is as follows:

Plaintiff commenced the instant matrimonial proceeding on January 4, 2010. There are five children of the marriage. The Preliminary Conference and Compliance Conference were held on February 22, 2010 and October 13, 2010, respectively.

Plaintiff-wife (hereinafter "Plaintiff") files a Notice of Motion, dated December 2, 2010, for an Order: (1) pursuant to DRL § 236, directing the Defendant to provide continuing financial support to the family, pendente lite, in the manner in which he provided it prior to the commencement of this action by continuing to pay the expenses referenced as follows: (a) directing Defendant to pay the monthly mortgage payments at the Jamaica Avenue premises by depositing the sum of $2,820.00 into Plaintiff's checking account or by paying it directly and paying Plaintiff the sum of $7,680.00 as a consequence of his failure to make prior payments; (b) directing Defendant to deliver to the Plaintiff the rental income of $900.00 per month from the tenant residing in the basement apartment at the 78th Avenue premises retroactive to August 1, 2010; ( c) directing Defendant to pay his share of the joint VISA credit card bill in the sum of $900.00 retroactive to August 1, 2010 and (d) directing Defendant to pay the sum of $15,528.75 [*3]per month for his share of the marital expenses; (2) pursuant to DRL § 237 granting an award of counsel fees, costs and expenses to the Plaintiff in the sum of $55,326.50 with leave to apply for additional fees; and (3) granting such other, further and/or different relief as to this Court may seem just and proper in the premises. Defendant-husband (hereinafter "Defendant") filed a Notice of Cross Motion, dated December 2, 2010 for an Order: (1) directing the Plaintiff to pay seventy-five percent of all carrying charges relating to the marital residence located at 78th Drive, including, but not limited to the mortgage, taxes, electricity, fuel, and phone, one hundred percent of the cost of food, car payment and car insurance for her car, the life insurance policy held in Plaintiff's name and her disability insurance and fifty percent for clothing, camp, tutors, school tuition and taxes for 2009; (2) awarding the Defendant the sum of twenty-five thousand $25,000.00 as and for counsel fees incurred by Defendant based on Plaintiff's frivolous nature of her application; (3) adjudging the Plaintiff in contempt of Court by reason her wilful failure to cash in the Coca-Cola stock as she was required to do, and for not cooperating in the listing and sale of property to provide funds to each of the parties, pursuant to the Order dated June 9, 2010 and an Order directing Plaintiff to immediately pay said amount; (4) directing the Plaintiff to reinstall the cameras in the marital residence; (5) denying Plaintiff's motion in its entirety; and (6) such other and further relief as this Court deems just and proper. Plaintiff filed an Affirmation in Opposition.

On November 15, 2010, Plaintiff filed an Order to Show Cause seeking an Order: (1) pursuant to DRL § 236, directing Defendant to make payment forthwith for certain specific expenses that he has customarily paid during the course of the marriage; (2) modifying the Order dated July 20, 2010, directing Defendant to make all further payments as may be required to the court appointed forensic psychologist; (3) granting leave to Plaintiff to sell the Coca-Cola stock; and (4) granting such other, further and or/different relief as to this Court may seem just and proper in the premises. Defendant filed an Affidavit in Opposition.

On December 2, 2010, both parties appeared with Counsel. The Court heard oral argument on the instant motions.

Upon the papers and after argument, the Court makes the following findings and orders.

New York Domestic Relations Law § 236 provides that in a matrimonial proceeding, the Court may award temporary maintenance in such amount as justice requires:

having regard for the standard of living of the parties established during the marriage, whether the party in whose favor maintenance is granted lacks sufficient property and income to provide for his or reasonable needs, whether the other party has sufficient property or income to provide for the reasonable needs of the other and the circumstances of the case and the respective parties.

Courts have held that the purpose of a pendente lite award is "tide over the more needy party" (Kesten v Kesten, 234 AD2d 427 [2nd Dept 1996] citing Roach v Roach, 193 AD2d 660). " Pendente lite awards should be an accommodation between the reasonable needs of the moving spouse and the financial ability of the other spouse, with due regard for the preseparation standard of living" (Hoenig v Hoenig, 245 AD2d 262, 263 [2nd Dept 1997]).

In both her Notice of Motion and Order to Show Cause, Plaintiff requests an Order directing Defendant to pay the monthly expenses that he customarily paid during the course of [*4]their marriage. These expenses include: (1) $966 monthly contribution to their joint VISA bill; (2) parochial school tuition for the parties' four children in the amount of $3,300.00; (3) American Express Card in the amount of $700.00; (4) US Bank Credit Card in the amount of $2,000.00; (5) Geico car insurance in the amount of $262.00; (6) car lease payment in the amount of $442.17 ^[FN1]; (7) Defendant's lease car payment in the amount of $431.95; (8) mortgage payment on the marital residence in the amount of $2,892.63; (9) State Farm Home Owners Insurance in the amount of $111.00; (10) water and sewer in the amount of $250.00, (11) Con Edison in the amount of $599.00; (12) cable in the amount of $90.00; (13) home telephone service in the amount of $90.00; (14) Key Span (for three properties) in the amount of $130.00; (15) Plaintiff's disability insurance in the amount of $141.00 monthly; (16) life insurance for both parties in the amount of $225.00; (17) and the mortgage on the Jamaica Avenue property in the amount of $2,820.00, for a total of $ 15,528.75 monthly.

Plaintiff argues that Defendant customarily paid said monthly expenses until the day of the Preliminary Conference, February 22, 2010. Plaintiff argues that she is unable to pay the monthly expenses and has borrowed money from relatives to supplement her salary to pay customary expenses for herself and the children. Plaintiff claims that Defendant has assets in excess of $4,000,000.00. Defendant admits that he owns certain assets, but does not believe that the assets are worth $4,000,000.00. The valuation of Defendant's assets is pending.

Defendant, who is engaged in the business of real estate, argues that he no longer has the financial resources to continue to pay all of the parties' expenses without contribution by Plaintiff. Defendant further agues that although Plaintiff alleges that Defendant refused to continue to pay certain expenses in February 2010, she did not make a motion seeking financial assistance until she filed the instant motions. Defendant argues that he and Plaintiff, an attorney, earn approximately the same income. Defendant does not dispute that he previously paid Plaintiff's car lease, but argues that when Plaintiff purchased a new minivan in July 2010, she increased the monthly payment from $387.73 to $442.17. Additionally, Defendant argues that he was forced to leave the marital residence after Plaintiff obtained an ex parte Temporary Order of Protection and threatened to call the police. Defendant further argues that "money that was going in one direction (for the family) now has to go in two directions (for a family divided physically by the plaintiff's actions and threats, and to meet his own personal basic needs)."

In his Cross Motion, Defendant requests that Plaintiff be directed to pay her car lease and car insurance and one hundred percent of the food for herself and the children, and one hundred percent of the amounts charged to her credit card for her personal use. Defendant further requests that Plaintiff pay seventy-five percent of the mortgage, taxes, electricity, fuel, phone and other expenses relating to the marital residence. Defendant further requests that each party be responsible for fifty percent of the children's expenses.

It is undisputed that Defendant customarily paid the mortgage on the marital residence, located at 135-07 78th Drive, Flushing, New York, in the amount of $2,892.63. Furthermore, while the mortgage on the property located at 211-37 Jamaica Avenue, Queens Village, New York was automatically deducted from Plaintiff's bank account, Defendant admits that he has [*5]customarily deposited the sum of $2,800.00 per month into Plaintiff's account to cover the mortgage payments. Plaintiff has customarily paid the mortgage in the amount of $2,000.00 for the property located at 150-01 78th Avenue, Flushing New York.

In his statement of net worth, dated April 23, 2010, Defendant has customarily paid the Con Edison in the amount of $599.00 monthly, the water bill in the amount of $120.00 monthly, telephone costs in the amount of $100.00 monthly, disability insurance for Plaintiff in the amount of $133.33 monthly, automotive insurance in the amount of $416.67 monthly, life insurance in the amount of $166.67 monthly, primary and secondary educational expenses in the amount of $3,000.00 monthly, and cable expenses in the amount of $92.00 monthly. In his Cross Motion, Defendant admits that he previously paid Plaintiff's car lease payments.

While Defendant argues that he does not have the financial resources to continue to pay the parties' expenses without a contribution from Plaintiff, he failed to present evidence to substantiate his claim. His statement of net worth indicates that Defendant paid the majority of the parties' expenses as of April 23, 2010. Notably, Defendant did not vacate the marital residence until October 2010. Although, Defendant agues that he was forced to leave the marital residence because Plaintiff obtained an ex parte Temporary Order of Protection and threatened to call the police on Defendant, Defendant did not seek the assistance of this Court or any other court of jurisdiction to address the claims and misuse of the Temporary Order of Protection. Understandably, Defendant chose to voluntarily vacate the marital residence. His choice obviously incurred additional living expenses, such as $1,000.00 monthly for rent, food costs in the amount of $900.00 monthly, and laundry in the amount of $25.00 per week. Of note, Defendant admits that he does not actually pay rent, but intent to do so in the future, albiet not known, to his friend once he receives the proceeds from the sale of one of the marital properties. Emphasis added.

The branch of Plaintiff's Notice of Motion and Order to Show Cause for an Order directing Defendant to pay expenses customarily paid by Defendant is granted in part.

Defendant is Ordered to paythe mortgage on the marital residence, located at 135-07 78th Drive, Flushing, New York, in the amount of $2,892.63 and the mortgage on the property, located at 211-37 Jamaica Avenue, Queens Village, New York, in the amount of $2,800.00. Defendant is directed to bring all mortgage payments current within 20 days of this order.

Defendant is further Ordered to pay the Con Edison bill, in the amount of $599.00 monthly, the water bill in the amount of $120.00 monthly, telephone costs in the amount of $100.00 monthly, disability insurance for the Plaintiff in the amount of $133.33, automotive insurance in the amount of $262.00 monthly, primary and secondary educational expenses for the children in the amount of $3,000.00 monthly, cable expenses in the amount of $92.00 monthly, and Plaintiff's car lease payments in the amount of $387.73 monthly.

The branch of Defendant's Cross Motion seeking an Order directing Plaintiff to pay seventy-five percent of the expenses of the marital residence, including mortgage, taxes, and utilities is denied.

Plaintiff also requests that Defendant be directed to pay a contribution of $966.00 monthly toward the joint VISA bill, American Express Credit Card bill in the amount of $700.00 for miscellaneous expenses and US Bank Credit Card bill in the amount of $2,000.00 monthly for miscellaneous expenses. Plaintiff indicates that Defendant customarily paid these expenses [*6]but has not provided any documents to substantiate her claim. Defendant did not include the credit card payments as monthly expenses in his statement of net worth. Plaintiff is gainfully employed as an attorney and earns approximately $13,652.48 monthly, as reported on her statement of net worth.

Based upon her income, Plaintiff is capable of paying the credit charges she incurs for her own expenses.

The branch of Plaintiff's Notice of Motion and Order to Show Cause requesting that Defendant pay the $966.00 contribution to the joint VISA bill, American Express Credit Card bill in the amount of $700.00 and US Bank Credit Card bill in the amount of $2,000.00 is denied.

The branch of Defendant's Cross Motion requesting that Plaintiff pay one hundred percent of her credit charges, including the joint VISA, American Express and US Bank Credit Card is granted.

The Court now turns to the branch of Defendant's Cross Motion requesting that Plaintiff pay one half of the children's expenses. As previously stated, the Defendant shall continue to pay the children's parochial school tuition in the amount of $3,000.00 monthly. However, with regard to the children's expenses, including food, clothing, extracurricular activities, tutoring and other miscellaneous expenses, the parties shall equally share in those expenses.

The branch of Defendant's Cross Motion requesting that Plaintiff pay fifty percent of the children's expenses, exclusive of parochial school tuition, is granted.

In the Notice of Motion, Plaintiff also requests that Defendant deliver to Plaintiff the rental income of $900.00 per month from the tenant residing in the basement at 150-01 78th Avenue, Flushing, New York, retroactive to August 1, 2010. In his Cross Motion, Defendant argues that the premises located at 150-01 78th Avenue is no longer rented and Defendant incurred $7,250.00 to renovate the premises. Defendant submitted a copy of a purported bill for the renovations, but failed to provide evidence to establish that the premises is no longer rented and has failed to provide any information regarding whether he is actively seeking a tenant for the premises. Defendant is directed to deliver to Plaintiff the rental income of $900.00 per month from the tenant residing in the basement at 150-01 78th Avenue, Flushing, New York, retroactive to August 1, 2010.

Accordingly, that branch of Plaintiff's Notice of Motion is granted.

New York Civil Law Practice and Rules § 5104 provides that a person or party may be punished by contempt of court for his refusal or wilful neglect to obey an order of the Court. DRL § 243, 244 and 245 provide that parties may be punished for failure to comply with orders issued in matrimonial proceedings. The record must reveal that the violating party willfully violated a clear and unequivocal mandate of the Court thereby prejudicing the other non violating party. See, Soehngen v Soehngen, 58 AD3d 829, App Div 2nd Dept 2009, citing, Matter of McCormick v. Axelrod, 59 NY2d 574, 583, 466 NYS.2d 279, 453 N.E.2d 508; Massimi v Massimi, 56 AD3d 624, 869 NYS2d 558; Rienzi v Rienzi, 23 AD3d 447, 449, 808 NYS2d 113).

Defendant requests an Order adjudging Plaintiff in contempt of court by reason of her wilful failure to cash in the Coca-Cola stock as she was required to do, and for not cooperating in the listing and sale of property to provide funds to each of the parties pursuant to an Order dated [*7]June 9, 2010 and an Order directing Plaintiff to immediately pay said amount. On June 9, 2010, the parties entered into a So Ordered Stipulation. Said stipulation directed Plaintiff to sell $7,500.00 worth of Coca-Cola stock and determined the use of said funds as retainer for the forensic evaluation of Defendant's businesses. It is undisputed that Plaintiff did not immediately sell the Coca-Cola stock. However, on December 2, 2010, Plaintiff purged any determination of contempt and stated, under oath, that she sold $7,500.00 worth of the Coca-Cola stock. There is no showing that plaintiff conduct prejudiced Defendant.

Accordingly, Defendant's request to adjudge Plaintiff in contempt for failure to sell $7,500.00 of the Coca-Cola stock is denied.

Said stipulation also included a provision in which the parties agreed to mutually select one of the properties jointly owned by them and put said property on the market for sale immediately. The parties were to mutually agree upon a selling price and divide the proceeds from the sale equally. Defendant argues that Plaintiff did not cooperate in listing said property for sale until the initial appearance before this Court in October 2010. Defendant claims Plaintiff's failure to cooperate in listing the property for sale has led to the accrual of additional counsel fees. Plaintiff acknowledges that she has not "strictly complied" with the Order of the Court. However, Defendant has failed to establish that Plaintiff failed to cooperate in listing the property for sale and that the delay caused prejudice or harm to him.

Accordingly, Defendant's request to adjudge Plaintiff in contempt for failure to cooperate in listing said property for sale is denied.

Defendant seeks an Order directing Plaintiff to reinstall the cameras in the marital residence so to ensure the safety and well being of the parties' oldest son, who has cerebral palsy. Plaintiff claims that the cameras serve no purpose and that were designed to humiliate and harass Plaintiff. Plaintiff claims that Defendant did not mention the installation of cameras until after the commencement of the instant matrimonial proceeding. Defendant failed to provide sufficient information regarding the cameras and whether they were damaged and/or destroyed.

The branch of Defendant's Cross Motion seeking an Order directing Plaintiff to reinstall the cameras in the marital residence is denied.

However, Plaintiff is Ordered to refrain from any destruction or removal of any installed cameras in the marital residence pending final determination of case.

Plaintiff's Order to Show Cause seeks an Order directing Defendant to make further payments as may be required, to the court appointed forensic psychologist, Dr. Hymowitz. In an Order dated July 20, 2010, Dr. Paul Hymowitz, PhD, was appointed as forensic examiner in the instant proceeding. This Order directed that "the cost of the aforesaid evaluation shall be borne equally by the parties."

Both parties are Ordered to make full payment of all amounts due to Dr. Hymowitz so that the evaluation may be conducted and completed expeditiously. It is further Ordered that all payments must be made within 15 days of the date of this order.

Both parties seek counsel fees pursuant to DRL § 237. Plaintiff seeks an award of counsel fees, costs, and expenses in the amount of $55,326.50, with leave to apply for additional fees. [*8]Defendant seeks legal fees in the amount of $25,000.00 for counsel fees incurred by Defendant based on the frivolous nature of Plaintiff's application.

DRL § 237 authorizes the award of counsel fees to a spouse during the course of a matrimonial proceeding. "An award of interim counsel fees ensures that the nonmonied spouse will be able to litigate the action, and do so on equal footing with the monied spouse" (Prichep v Prichep, 52 AD3d 61, 65 [2nd Dept 2008]). In the instant proceeding, based upon the parties' statements of net worth, Plaintiff and Defendant earn approximately, $163,000 and $174,000 yearly, respectively. Additionally, the Court has ordered that one of the marital properties be listed for sale and the proceeds of the sale be divided equally. The valuation of Defendant's assets is currently pending. According to her statement of net worth, Plaintiff has approximately $155,524.07, in her deferred compensation plan and $28,000.00 in her pension. Moreover, Plaintiff has more than $10,000.00 of Coca-Cola stock remaining. Both parties are monied spouses.

Therefore, both parties' applications for counsel fees are denied.

The above constitutes the Decision and Order of the Court.

Dated: January 7, 2011So Ordered:

___________________________

PAM JACKMAN BROWN, JSC