Defendant, (the "Wife") moves for certain pendente lite relief. Some of the matters requested in her motion have been fully, or at least temporarily, resolved. The Plaintiff (the "Husband") opposes certain of the requested relief.

Background

The parties were married on May 15, 1993 and have one son, born June 25, 1997. The Wife is 47 years old and lists her occupation as homemaker. The Husband, also 47 years old, is the director of a real estate firm. His gross income as reported on the parties' 2009 joint federal income tax return was $1,834,731. According to the Husband, in 2010 his income decreased to $1,017,387 because of a downturn in the real estate market. The Wife reports joint assets accumulated during the 17-year marriage worth more than $9,856,106, including liquid assets valued at $3,856,106. The Husband reports joint assets worth approximately $4,617,721.

After significant marital conflict in early November 2010, the Wife suffered a severe breakdown, was hospitalized, and attended a residential drug treatment program in California for six weeks. ^[FN1]

On November 17, 2010, the Husband commenced the instant action for divorce. Shortly thereafter he applied to the Family Court for an order of protection against the Wife. Upon the Wife's return to New York City in January 2011, she rented a three bedroom apartment in Manhattan.

The son presently resides with the Husband in the marital rental apartment located in [*2]Manhattan. It is undisputed that the Husband provides for all of the son's expenses, including private school, extra-curricular activities and camp.

On January 24, 2011 the Wife filed the instant motion. Certain issues raised in the motion were resolved over the next few months. On April 11, 2011, the court consolidated the pending Family Court action into this action. On May 4, 2011 the Wife withdrew her request for a temporary order of protection against the Husband. The Wife's request for child support became moot in that, pending a final custody determination, the child of the marriage will continue to reside primarily with the Father who will be 100% responsible for the child's expenses. The court appointed an attorney for the child and ordered a mental health forensic evaluation. The Husband agreed to continue the Wife on his health insurance policy. In addition, the Wife was granted use of one of the cars owned by the parties. She was also granted access to the marital apartment and the Hamptons residence to remove her personal belongings. Furthermore, all marital accounts have been restrained and the Wife has been given access to the records for those accounts under the Husband's control.

The following issues from the pendente lite motion remain unresolved. The Wife seeks temporary maintenance in the amount of $20,000 per month, plus payment by the Husband of her unreimbursed medical expenses and her $5,050 monthly rent payments. She also seeks reimbursement of $24,500 for the costs she incurred in attending the drug rehabilitation residential program; $95,000 reimbursement for the expenses she incurred to acquire and furnish her new apartment; and regular access to the parties' Hamptons residence and boat. She also seeks to have this court vacate the temporary order of protection issued against her. The Husband opposes these applications.

Maintenance

A new temporary maintenance statute became effective on October 12, 2010, a month before this action commenced. DRL § 236 B (5-a). The law requires the court to first determine each party's income as that term is defined by statute. DRL § 236B (5-A) (1) (b) (4). The court must then determine the presumptive award of interim maintenance DRL § 236B (5-a) (1) (b) (8). To determine the presumptive award of maintenance, the court must perform calculations using each party's income applying two different statutory formulas. In performing these calculations, the income of the payor spouse [the spouse with the higher income, DRL § 236B (5-a) (1) (b) (1)] is capped at $500,000. DRL §236B (5-a) (b) (5). The guideline amount will be the lower result of the two calculations. However, where the payor spouse's income exceeds $500,000, the court "shall determine any additional guideline amount of temporary maintenance" through consideration of 19 statutory factors. DRL § 236B (5-a) (c)(2). The resulting sum is the guideline amount of temporary maintenance. This amount is the presumptive award unless the court finds that the amount is "unjust or inappropriate" based upon consideration of 17 statutory factors. DRL § 236B(5-a)(e)(1).

Here, the Husband concedes that his annual income exceeds one million dollars. Thus, it is capped at $500,000 for purposes of applying the initial, mandatory [*3]calculations.^[FN2] The parties dispute whether the Wife earns income. The Wife reports no income on her sworn statement of net worth and avers, in her moving affidavit, that she "earned little in the last five years." (Ex. E to moving papers and Moving Aff. at ¶13). In addition, the Wife submits a financial statement she claims was signed by each of the parties on September 27, 2009 and submitted to the Real Estate Board of New York ("REBNY"), listing income of $1,371,606 for the Husband and no income for the Wife. (Ex. D to moving papers). The Husband claims that his purported signature on that document is a forgery.^[FN3]

The Husband asserts that the Wife earned a net profit of approximately $62,000 in 2009, from day-trading activity, and claims that these earnings are reflected on the parties' joint tax return for that year (Aff. In Opp., ¶ 25). However, the court cannot draw that conclusion from a review of the 2009 tax return. The return lists a net capital loss of $3,000 and a net short-term capital gain of $37,765 for the year. Nothing in the tax return indicates who executed the stock transactions or suggests a significant amount of trade activity (Ex. 3 to Aff. in Opp.). The Husband also submits an email from a person identified by him as the Wife's broker, in which the purported broker represents that the Wife had "about $800k" in trading profits during two unspecified years of trading. (Ex. 2 to Aff. in Opp.). The information from the purported broker, in the form of an email response to a message from the Husband, is not competent evidence. It is unsworn and the content of the email message is vague and unspecific. Moreover, it is not supported by the tax return submitted by the Husband.

The Wife concedes that at one time she worked as a part time sales representative. She claims, however, that she has not worked in that capacity for five years. (Aff. In Support, ¶ 20). Moreover, she claims to now suffer from post traumatic stress disorder (allegedly the result of her Husband's abuse) and severe back pain. The Wife is 47 years old and recently suffered a complete emotional collapse. It is undisputed that her drug and alcohol abuse required extensive in-patient treatment.

Not only does the Husband acknowledge the Wife's recent substance abuse issues, but claims that she used drugs and alcohol throughout the years of their marriage. He contends that she has been diagnosed as manic depressive and to suffer from bi-polar disorder. Nonetheless, he argues that income should be imputed to her because she held a responsible job for 20 years. However, he also acknowledges that she was terminated from that position allegedly because of her alcohol abuse. (Aff. of Plaintiff, ¶¶ 3, 10, 21).

Under all of these circumstances, the court finds there is insufficient evidence from which to impute any income to the Wife and declines to do so at this time.

Therefore, for purposes of the initial calculations, the court finds the Husband's [*4]income to be capped at $500,000 and the Wife's income is $0.

Mandatory Calculations

Calculation A:

For the first calculation, the court is required to subtract 20% of the payee's income from 30% of the payor's income. Here, since the Wife has no income, $0 is subtracted from 30% of the payor Husband's capped income of $500,000. 30% of that sum is $150,000 per year or $12,500 per month.

Calculation B:

For the second calculation, the court is required to add together the payor's income and the payee's income, and multiply this sum by 40%. The payee's income is then subtracted from this figure. 40% of $500,000 (the parties combined income for purposes of the statute) is $200,000 per year or $16,666 per month.

Calculation A results in the lower amount, so that the guideline amount of temporary maintenance attributable to the Husband's annual income up to $500,000 is $12,500 per month.

Because the Husband earns in excess of $1 million annually, the court must determine whether any additional guideline amount of temporary maintenance is warranted based on that portion of the his income exceeding $500,000. To reach this determination, the court must consider 19 factors set forth in DRL §236B(5-a)(c)(2)(a).

The parties were married for 17 years. Thus, this is a relatively long marriage (factor i). Clearly, there is a substantial difference in the income available to each party. Although the Husband claims he suffered a recent decline in income, he still is an exceptional wage earner (factor ii). The parties enjoyed a high standard of living including residing in a Manhattan rental apartment, owning a vacation home in the Hamptons, a boat, two luxury vehicles (a Range Rover and a Jaguar), regular dining out, vacations, housekeepers and a nanny and private school for the son. There is no compelling reason why the Wife should not continue to enjoy a standard of living consistent with what existed during the marriage (factor iii).

The Wife is 47 years old and in poor health, as conceded by the Husband. The Husband is in good health and of an age that will enable him to continue working for some time. The present and future earning capacity of the Husband is excellent while the Wife's ability to work is unclear. Although she worked in the past and, according to the Husband, held a responsible position, she lost that position allegedly due to substance abuse some years ago. Even if it is true that for a short period of time the Wife engaged in day trading, it cannot be known whether she could succeed in earning sufficient income performing this work to support herself on a long term basis.

The court has monitored the Wife's condition with mandated drug testing. She has remained drug free. Removing financial stress while the Wife continues to recover will hopefully prove beneficial and enable her to regain employment. However, insufficient information exists at this time to predict when or in what capacity the Wife could return to work (factors iv, v, xiii).

It is acknowledged that the Husband is paying the Wife's health insurance and all of the child's expenses, including private school (factors xi, xiv).

The court finds other statutory factors to be of little import to the court's decision. The Husband asserts that the Wife engaged in wasteful dissipation of marital expenses [*5]through excessive spending, but the court finds that each party spent money freely during the years of the marriage as evidenced by some of the assets they own and acknowledged lifestyle (factor vii). The Wife claims that the Husband engaged in acts of domestic violence that inhibited her ability to maintain meaningful employment. The Husband denies those allegations and claims he is the abused spouse. There is a temporary order of protection outstanding against the Wife. The abuse issues raised by each party would require a hearing. However, the court does not find the issue critical in reaching its temporary maintenance decision. The parties now live apart minimizing safety concerns. Notably, the parties acknowledge that during the course of the marriage they each engaged in behaviors displaying poor judgment. (factor x). The Wife claims that she did not work full time for years during the marriage because the Husband wanted her to be at home to care for their son. However, she concedes that she held a position as a sales representative after the child was born. In any event, since November 2010, the child has resided with the Father at least until a further determination of custody (factor xii). Neither party submitted any evidence relative to tax consequences that would affect the maintenance award (factor xv).Based on the court's consideration of all of the relevant factors set forth in DRL §236B(5-a)(c)(2)(a), the court finds some additional amount of maintenance is appropriate attributed to the Husband's income over $500,000 and that this additional amount will be $5,050 each month, necessary for the Wife's rental payment. Thus, the court finds the presumptive monthly award of temporary maintenance to be $17,550 ($210,600 annually). Taking into account the 17-year length of the marriage, the guideline duration of this temporary maintenance award shall be until the issuance of the final award of maintenance or the death of either party, whichever occurs first. DRL §236B (5-a)(d).

After the court has determined the presumptive amount of temporary maintenance and its duration, the court may adjust the amount if the award would be "unjust or inappropriate" based upon the 17 factors prescribed in DRL § 236B(5-a)(e)(1). Each of the parties argue that an award of the guideline amount of temporary maintenance would be unjust and inappropriate.

The Wife argues that it would be unjust and inappropriate to award her support below $20,000 per month plus the $5,050 for rent, given the lavish standard of living that the parties enjoyed during their long term marriage and the fact that her poor physical and emotional health, caused by the Husband's abusive conduct during the marriage, has inhibited her own ability to gain or maintain meaningful employment.

The Husband argues that it would be unjust and inappropriate for the court to award temporary maintenance in excess of $7,000 plus $3,500 for a rent allowance. Although the Husband acknowledges that the parties led a "comfortable" lifestyle, he asserts that the marital living expenses were much less costly than portrayed by the Wife. He contends that he could have obtained a smaller, less expensive apartment for the Wife and that her current three-bedroom apartment with a rent of $5,050 is excessive. He also argues that the Wife overspent during the marriage and squandered marital assets and income. He contends that his income declined due to market conditions but that, nonetheless, he has continued to maintain the marital assets including all of the carrying charges on the parties' two residences and all of the son's expenses. The Husband further argues that once the Wife is rehabilitated she [*6]has the potential to earn approximately $100,000 per year as a sales person, as she did for many years before she was fired due to lack of sobriety at work.

The court has already considered all of the factors set forth in DRL §236B(5-a)(e) in its analysis of the amount of guideline maintenance attributable to the Husband's income in excess of $500,000, pursuant to DRL §236B(5-a)(c)(2)(a), and finds that the presumptive award of $17,550 is neither unjust nor inappropriate. Contrary to her arguments, the court finds that the award is sufficient to meet the Wife's needs in accordance with the parties' lifestyle. The court also finds that the Husband has sufficient income to pay the presumptive award and still maintain the marital assets and meet his and the child's expenses. In point of fact, he argued that the Wife overstated the family's expenses, thus proving the point that he has sufficient income to meet the maintenance award and his other obligations (Aff. In Op., pp. 9-11)). The court rejects the Husband's argument that the Wife's rental is high and that she does not need a three bedroom apartment. The Wife needed the larger space to accommodate the son's visitation and a required nanny. The cost for the three bedroom apartment is not excessive.

Given the significant temporary maintenance award, however, the Wife shall be 100% responsible for her unreimbursed medical and therapy expenses. These costs are, to a large extent, within her control. Given the Husband's responsibility to maintain the family's assets and meet the needs of the child, the Wife must bear some responsibility for meeting her own actual costs. In addition, the Wife shall be 100% responsible for the cost of the nanny she is required to have when the child resides with her. The Wife shall also be 100% responsible for her utilities, internet connection, cable, telephone and any other ongoing costs related to her apartment.

The award of temporary maintenance is retroactive to the original date of service of this application.^[FN4] Retroactive sums accrued by reason of this award shall be paid at [*7]the rate of $3,000 per month in addition to the sums awarded until all arrears have been satisfied. The Husband may take a credit for sums voluntarily paid for actual maintenance and support of the Wife after making the motion and prior to the date of this decision for which he has canceled checks or other similar proof of payment. Peltz v Peltz, 56 AD2d 519 (1st Dept 1977); Pascale v Pascale, 226 AD2d 439 (2d Dept 1996). The first payment hereunder shall be made within 10 days of the date of this decision without notice of entry, and then half of each month's payment shall be made on the first and fifteenth day of each month thereafter.^[FN5]

Other Expenses

The Wife requests that the Husband be directed to pay into the joint checking account the sum of $24,500 previously paid from the parties' marital assets to cover her stay at the residential rehabilitation program in California and related travel costs. The Husband argues that the expenses related to the rehabilitation program already were paid from joint assets, and should be charged to the Wife upon distribution of the marital assets. It is undisputed that the costs related to the Wife's treatment at and travel to the rehabilitation program have been paid from marital funds. How this cost should affect the distribution of the parties' assets shall be determined at trial. The Wife's request that the Husband pay $24,500 into the marital bank accounts is denied.

The Wife seeks approximately $95,000 for the cost to secure and furnish her new apartment in Manhattan. The court denies the request. According to the Wife's sworn statement of net worth, she paid the sum of $15,150 to her landlord as three months security to rent her apartment. (Ex. E to moving papers). She does not identify the source of the funds she used to pay that security deposit. She also does not identify the actual cost of the items she would need to furnish for her apartment. Moreover, the Husband contends that the parties own new furniture kept in storage which the Wife could use to meet her needs. The Wife shall have the right to use any items of furniture or furnishings kept in storage by the parties and may use them in her new apartment. The Husband is directed to make the storage facility available to the Wife for that purpose.

Access to the Hampton's House and Boat

The Wife requests access to the parties' house in the Hamptons and the boat kept there. The Husband opposes the request on the basis that the son's enjoyment of his time there will be diminished by the Wife's presence. He also contends that the home is his separate property and that the deed transferring title of the property to the parties' joint names is a forgery. The ownership issue can be addressed through discovery and at the trial of the financial issues. However, the Husband does not deny that during the marriage both parties enjoyed use of the property.

Subsequent to the filing of this motion, the issue arose regarding where the son would spend his summer. The Wife sought to have the child attend a sleep away camp. The Husband sought to have the child attend camp programs in the Hamptons. The court has since been informed that the son will be attending a day camp program [*8]in Purchase, NY for three consecutive weeks. During the spring, the parties agreed that the Wife would have alternate weekend access with the child, albeit in the company of a nanny. If the Wife is not allowed to have access to the Hampton's residence during the summer for those visits, the child will be made to suffer. He might very well be required to spend his weekends in the city to enable the Wife to enjoy her access time. Having elected to have the child attend a day camp, the Husband cannot now complain that the Wife will need access to the Hamptons residence to spend time with the son in circumstances that might help improve their relationship. Thus, the Wife's request for access to the Hamptons residence is granted to the extent that the Wife may have exclusive occupancy of the residence on alternate weekends, from 6:00 p.m. on Friday until 6:00 p.m. on Sunday, beginning with her next scheduled access weekend with the child following the date of this decision through September 2011. The Husband will vacate the Hamptons residence during the Wife's scheduled weekends.

The Wife does not dispute the Husband's contention that she is not able to operate the boat. Therefore, the Wife's request for access to the boat kept by the parties in the Hamptons is denied.

Interim Counsel Fees

The Wife requests counsel fees in the amount of $25,000, asserting that her attorney charges $400 per hour and that $5,000 of the $10,000 initial retainer (paid by the Husband to the Wife's attorney) is quickly being depleted by a significant amount of motion practice. The Wife contends that she is on an unequal financial footing and fears that the Husband will use his greater financial resources to her disadvantage in this litigation. The Wife's attorney submitted a retainer agreement and an affirmation requesting $25,000, based upon anticipated litigation and discovery. She stated that she already spent at least 30 billable hours (30 times $400 per hour = $12,000) on this matter and thus, the initial retainer has been depleted.

DRL § 237, the statute authorizing the award of counsel fees in matrimonial actions, was also amended effective October 12, 2010. Before the amendment, the statute was held to authorize the court to direct either spouse to pay counsel fees in order to enable the other spouse to carry on or defend the action as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties (See, De Cabrera v Cabrera-Rosete, 70 NY2d 879 [1987]). The statute now creates a rebuttable presumption that counsel fees shall be awarded to the less monied spouse.

Inasmuch as it appears that the Wife lacks sufficient funds of her own to compensate counsel, but recognizing that the Husband has already paid her prior counsel $5,000 and has been charged with paying 100% of the costs of the appointed neutral experts, the court will at this time order an attorney fee award of $20,000. The Wife has discharged the attorney who submitted this motion on her behalf. The Husband objects to the Wife's representation by the substituted attorneys. Payment of the counsel fee award shall be made within 30 days after the issue of possible disqualification of the Wife's present counsel is resolved. This award is made without prejudice to further application for additional sums as may be necessary at the time of trial or sooner (Ritter v Ritter, 135 AD2d 421 [1st Dept 1987]).

[*9]Temporary Order of Protection

The Wife requests that the court vacate the Temporary Order of Protection issued against her by the Family Courtand continued, to July 18, 2011, by this court. The Wife's request to vacate that order is denied pending a hearing.

Both parties are cautioned that any assets held by either party are under restraint. Each party shall also continue to maintain any existing life insurance policy.

Accordingly, it is hereby

ORDERED, that the Plaintiff shall pay the sum of $17,550 to the Defendant as temporary maintenance, retroactive to the date of this application. The tax consequences of this award shall be determined at a later date; and it is further

ORDERED, that the Defendant shall be 100% responsible for her unreimbursed medical and therapy expenses, the cost of her nanny during her parenting access time, and her utilities, internet connection, cable, telephone and any other ongoing costs related to her apartment; and it is further

ORDERED, that retroactive sums owed by reason of this award shall be paid at the rate of $3,000 per month in addition to the sums awarded until all arrears have been satisfied. The Plaintiff shall receive a credit for sums voluntarily paid for actual maintenance and support of the Defendant after making the motion and prior to the date of this decision for which he has canceled checks or other similar proof of payment, The first payment shall be made within 10 days after the date of this order, without notice of entry and then half of each month's payment ($8,775) shall be made on the first and the fifteenth day of each month thereafter; and it is further

ORDERED, that the award of temporary maintenance shall continue until the award of final maintenance or the death of either party; and it is further

ORDERED, that the Plaintiff shall maintain in full force and effect the existing health insurance policy for the Defendant's benefit; and it is further

ORDERED, that the Defendant is awarded interim counsel fees in the sum of $20,000 to be paid by the Plaintiff within 30 days after resolution of the issue regarding the possible disqualification of the Wife's new attorneys. The award is made without prejudice to further application for additional sums; and it is further

ORDERED, that the Defendant's request that the Plaintiff pay $24,500 into the marital bank account, as reimbursement for the costs associated with the Defendant's participation in a California drug rehabilitation program is denied; and it is further

ORDERED, that the Defendant's request for an award of $95,000 toward the cost of renting and furnishing her new apartment is denied. The Wife shall have possession of any items of furniture or furnishings kept in storage by the parties that she chooses and may use them in her new apartment. The Husband is directed to make the storage facility available to the Wife for that purpose; and it is further

ORDERED, that the Defendant's request for access to the Hamptons house is granted to the extent that the Defendant may have exclusive occupancy of the residence on alternate weekends from 6:00 p.m. on Friday until 6:00 p.m. on Sunday beginning with her next scheduled access weekend with the child following the date of this decision through September, 2011. The Husband shall vacate the Hamptons residence during the Wife's scheduled weekends; and it is further

ORDERED, that the Defendant's request for access to the boat kept by the [*10]parties in the Hamptons is denied; and it is further

ORDERED, that Defendant's request to vacate the temporary order of protection is denied at this time, pending a hearing; and it is further

ORDERED, that each party shall continue to maintain any life insurance policy presently held; and it is further

ORDERED, that any relief not granted with specificity herein is denied, except to the extent previously agreed upon by the parties.

This constitutes the decision and order of the Court.

Dated: June 27, 2011

________________________

Laura E. Drager, J.S.C.