Plaintiff ("Wife") moves by Order to Show Cause dated February 24, 2011 seeking an Order A) directing the Defendant ("Husband") to pay 74% of the carrying charges of the martial residence including, but not limited to, mortgage principal and interest, real estate taxes, utilities, telephone, internet service, cable, landscaping and repairs; B) directing the Husband to pay child support for the benefit of the parties three (3) infant issue, to wit: C, born, August XX, 1992; L, born January XX, 1995; and K, born May XX, 1998, in the amount of $567.00 per week, retroactive to the date of the within application; C) awarding temporary spousal maintenance for the support of the Wife and directing the Husband to pay the Guideline Amount of $396.00 per week during the pendency of this action, retroactive to the date of the within application; D) directing the Husband to pay 100% of the policy for medical, hospitalization, therapy, pharmaceutical, and dental insurance currently in existence for the benefit of the Wife and the issue of the marriage, and further directing the Husband to pay 100% of all reasonable uncovered medical expenses incurred, including without limitation, hospital, medical, dental, orthodontic, pharmaceutical, and therapy expenses, incurred or to be incurred, retroactive to the date of the within application; E) awarding Wife exclusive use and occupancy of the marital residence [*2]located at X, New York on a pendente lite basis; F) granting Husband parenting time with the parties' children every other weekend from Friday, after school at 3:00 pm. until Sunday evening at 9:00 pm., and one (1) weekday evening dinner visit per week; G) directing the Husband to pay Wife's counsel fees in the amount of $7,500.00.

Husband opposes Wife's motion, however, branches "E" and "F" of Wife's motion were resolved pursuant to a "So-Ordered" Stipulation of the parties dated May 24, 2011 (the "Stipulation"). Husband has agreed that Wife shall have exclusive use and occupancy of the marital residence, pendente lite, and Husband shall enjoy parenting time with the parties' children as more specifically set forth in the Stipulation.

The parties were married on September XX, 1990, and there are three children of the marriage, to wit: C, born August XX, 1992; L, born January XX, 1995; and K, born May XX, 1998. The children reside with the Wife in the marital residence, which is located at X, New York.

Husband is 45 years old, reports to be in good health, and is employed as a computer programmer for V. His gross earnings for 2010, according to his W-2 Form, were $105,397.16. Wife is 44 years old, reports to be in excellent health, and is employed as a customer service representative for G. According to her most recent pay-stub, her gross yearly salary is $34,000.00. Both parties hold Bachelor of Science degrees.

It is undisputed that Wife earns additional income from her part-time employment as a waitress. Husband claims she earns an additional $10,000.00 in unreported income and Wife claims that she earns $5,000.00. She does not deny that such additional income is unreported. The Court will accordingly impute an additional income of $10,000.00 to Wife.

In reviewing Wife's sworn Statement of Net Worth, the Court finds that Wife's monthly expenses (not including the children's unreminbursed health-related expenses, college expenses, school events, religious education, summer camp, dance lessons, and costumes, which expenses shall be shared by the parties, and the parties' own unreimbursed health-related expenses) total approximately $5,411.33. Husband's monthly expenses (not including the children's unreminbursed health-related expenses, college expenses, school events, religious education, summer camp, dance lessons, and costumes, which expenses shall be shared by the parties, and the parties' own unreimbursed health-related expenses) total $3,112.00.

Husband acknowledges that the family's health care benefits are provided by his employer. He agrees to continue to provide such coverage for the family during the pendency of the action.

In light of the support awards made herein below, and in consideration of the parties household expenses as set forth herein above, branch "A" of Wife's motion is GRANTED TO THE EXTENT THAT Husband shall contribute $300.00 a month towards the carrying charges of the marital residence.

Branch "B" of Wife's motion is GRANTED TO THE EXTENT THAT Husband is directed to pay directly to Wife the sum of $1,000.00 per month ($12,000.00 per year) for the temporary support of the parties' three children, as and for the Husband's share of the child's reasonable monthly needs for food, clothing, transportation, school supplies, laundry, recreation [*3]and miscellaneous. In determining temporary child support awards, the court, in its discretion, may apply the Child Support Standards Act, but it is not required to do so. Rubin v. Salia, __A.D.3d __ (1st Dept. 2010). It is the judgment of this Court, based upon the reasonable expenses of the children and the parties respective incomes after consideration of the temporary maintenance award directed herein and the parties' various pendente lite obligations, that temporary child support of $1,000.00 per month for the children is appropriate.

The award of child support is retroactive to the original date of service of this application. See D.R.L. §236, Part B(7). Retroactive sums due by reason of this award shall be paid at the rate of $100.00 per month, in addition to the sums awarded until all arrears have been satisfied. The first payment of child support and arrears shall be made on June 15, 2011, and then on the first of each month thereafter. Husband may take a credit for sums voluntarily paid for actual support of the children incurred, including credits for room and board, after the making of this motion and prior to the date of this decision for which he has cancelled checks or other similar proof of payment, including a written acknowledgment of the Wife. See Peltz v. Peltz, 56 AD2d 519 (1st Dept. 1977); Pascale v. Pascale, 266 AD2d 439 (2nd Dept. 1996).

With respect to educational costs, religious school expenses, summer activities, child care, school events, extra curricular activities, dance lessons, and costumes of the children, the parties are directed to share said costs, with the Wife paying 35% and the Husband paying 65%, commencing June 15, 2011.

In actions commenced on or after October 12, 2010, applications for temporary spousal maintenance must be determined by the court by employing the statutory formula set forth in D.R.L.§236 B (5-a). The statute, however, gives courts the authority to deviate from the formula where it is determined that "the presumptive award is unjust or inappropriate." D.R.L. §236 B (5-a)(e)(1). The court may adjust the presumptive award of temporary maintenance as it finds proper, based upon its consideration of seventeen enumerated factors set forth in that section of the statute. The presumptive award of temporary spousal maintenance is calculated using the formula set forth in D.R.L. §236 (B)(5-a)( c )(1), which in the instant action is as follows:

TEMPORARY SPOUSAL MAINTENANCE GUIDELINES CALCULATION

I INCOME
1. Plaintiff	$42,079.00	Net of FICA and Medicare Tax on $34,000.00 Plus $10,000.00 of imputed income
2. Defendant	$99,442.22	Net of FICA and Medicare Tax
Income Over 500K
3. Plaintiff	$0.00
4. Defendant	$0.00

II CALCULATIONS
Income up to $500,00.00	$0.00
5. Plaintiff	$42,079.00
6. Defendant	$99,442.22
Basic Calculation	$0.00
7.Calculation A	$21,416.87	30% of Payor's Income minus 20% of Payee's Income.
8. Calculation B	$14,529.49	40% of Combined Income minus Payee's Income.
9.Guideline Amount	$14,529.49	The Lesser of Line 7 and Line 8; or zero if Line 8 is less than or equal to zero.
Low Income Calculation (If Applicable)	$0.00
10.Payor Income minus Guideline Amount	$84,912.73
11. Low Income Amount	$0.00
Where the guideline amount would reduce the Payor's Income below the self-support reserve ($14,620.00), the award is the Payor's income minus the self support reserve. If Line 11 equals zero, there is no adjustment for low income.

III AWARD
PAYOR	Defendant
12. Annual Amount	$14,529.49
13. Monthly Payment	$1,210.79
14. Bi-Weekly Payment	$558.83
15. Weekly Payment	$279.41

Income Exceeds $500,000.00: If the Payor's income exceeds $500,000.00, the court considers 19 factors set forth in DRL §236 (B)(5-a)(c)(2)(a) in determining any additional award of temporary maintenance. In the case at bar there is no income that exceeds $500,000.00.

Adjustment of Award: The court may adjust the award if it finds the award is unjust or inappropriate based on its consideration of the following 17 factors set forth in DRL §236(B) (5-a)(e)(1): [*4]

1.The standard of living of the parties established during the marriage;

2.The age and health of the parties;

3.The earning capacity of the parties;

4.The need of one party to incur education or training expenses;

5.The wasteful dissipation of marital property;

6.The transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;

7.The existence and duration of a pre-marital joint household or a pre-divorce separate household;

8.Acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employments. Such acts include but are not limited to acts of domestic violence as provided in §459-A of the Social Services Law;

9.The availability and cost of medical insurance for the parties;

10.The care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party's earning capacity or ability to obtain meaningful employment;

11.The inability of one party to obtain meaningful employment due to age or absence from the workforce;

12.The need to pay for exceptional, additional expenses for the child or children, including, but not limited to, schooling, day care and medical treatment;

13.The tax consequence to each party;

14.Marital property subject to distribution pursuant to subdivision 5 of this part;

15The reduced or lost earning capacity of the party seeking temporary maintenance as a result of having foregone or delayed education training employment or career opportunities during the marriage;

16.The contributions and services of the party seeking temporary maintenance as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and

17.Any other factor which the court shall expressly find to be just and proper.

Based upon the foregoing, branch "C" of Wife's motion is GRANTED TO THE EXTENT THAT the Court directs an award of temporary maintenance in the sum of $1,210.12 per month ($14,529.49 per year), which is the Guideline Amount. The first payment of temporary maintenance and arrears shall be made on June 15, 2011, and then on the first of each month thereafter. The award of spousal support is retroactive to the original date of service of this application. See D.R.L. §236, Part B(6). Retroactive sums due by reason of this award shall be paid at the rate of $100.00 per month, in addition to the sums awarded until all arrears have been satisfied.

The court notes that, after payment of his contribution towards the carrying charges of the marital residence, temporary child support, and temporary maintenance, and arrears, the Husband has approximately $69,000.00 per year remaining from which to pay add-ons for the children, unreimbursed health-related expenses, and his own expenses. [*5]

With respect to branch "D" of Wife's motion, Husband is directed to continue to pay the premiums for the medical, hospitalization, therapy, pharmaceutical, and dental insurance currently in existence for the benefit of the Wife and the issue of the marriage, pendente lite, so long as it is available through his employment. The parties are directed to share all reasonable uncovered medical expenses incurred on behalf of the parties' children, including without limitation, hospital, medical, dental, orthodontic, pharmaceutical, and therapy expenses, pendente lite, with the Wife paying 35% and the Husband paying 65%, retroactively to the date of the application. The parties shall utilize in-network providers, unless otherwise agreed upon in writing, with the exception of medical emergencies. Each party shall be responsible for their own uncovered medical, dental, orthodontic, pharmaceutical, and therapy expenses.

Branch "G" of Wife's motion seeking an award of interim counsel fees is DENIED WITHOUT PREJUDICE TO RENEW UPON PROPER PAPERS based upon her failure to comply with D.R.L. §237(a). Wife has failed to set forth in her affidavit in support of her application all the required information.

All matters not decided or requests for relief not granted herein are hereby DENIED.

This constitutes the decision and order of this Court.

Dated:June 8, 2011

Mineola, New York

ENTER:

_______________________

Edward A. Maron, J.S.C.