[*1]
J.V. v G.V.
2011 NY Slip Op 51904(U) [33 Misc 3d 1212(A)]
Decided on August 22, 2011
Supreme Court, Nassau County
Janowitz, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on August 22, 2011
Supreme Court, Nassau County


J.V., Plaintiff,

against

G.V., Defendant. G.V., Plaintiff, J.V., Defendant.



G.V., Index No. 202708/2010 Plaintiff, Submit Date April 13, 2011 -against-

against

J.V., ACTION #2 Defendant.




202926/2010



Gassman, Biamonte, Betts, PC

Attorney for Wife

666 Old Country Road

Garden City, NY 11530

516-228-9181

DelVecchio & Recine

Attorney for Husband

100 Franklin Avenue

Garden City, NY 11530

516-294-5555

Norman Janowitz, J.



The following papers having been read on this Order to Show Cause by plaintiff for pendente lite relief: [*2]

Order to Show Cause, Affidavit, Affirmation and Exhibits (Action #1) ....1

Notice of Cross-Motion, Affidavits and Exhibits (Action #2) .... ....2

Reply Affidavit, Affirmation and Exhibits ... ...3

Reply Affidavits .......4

Upon the foregoing papers, it is ordered that these motions are decided as follows:

Plaintiff-wife [FN1] in Action #1 moves by Order to Show Cause for an Order (1) directing defendant to pay plaintiff, pendente lite, non-taxable maintenance in the sum of $11,000.00 per month; (2) directing defendant to continue to reimburse plaintiff for the cost of maintaining medical and dental insurance for the parties and their children, which is deducted from her bi-weekly paycheck, and to pay the parties' unemancipated child's unreimbursed healthcare expenses; (3) awarding plaintiff interim counsel fees in the amount of $25,000.00 without prejudice to additional applications and (4) joining Actions #1 and #2 for purposes of trial. Defendant opposes the motion and cross-moves in Action #2 for an Order directing plaintiff to pay defendant $1,163.00 per month for her pro rata share of the family's expenses in the event that the Court grants plaintiff interim maintenance.

Pursuant to a "So-Ordered" Stipulation entered into by the parties on April 1, 2011, Actions #1 and #2 were joined for purposes of trial. Accordingly, branch "4" of plaintiff's application is not addressed herein.

BACKGROUND


The parties were married on September 8, 1984, and there are three children born of the marriage, to wit: G., born November 30, 1985, L., born June 7, 1988 and B., born March 20, 1990. Plaintiff is 52 years old and defendant is 53 years old. Both parties are in good health. Defendant resides in the marital residence with the children.

Plaintiff commenced an action for divorce on October 14, 2010 (Action #1), and defendant commenced an action for divorce on September 29, 2010 (Action #2).

It is undisputed that plaintiff voluntarily vacated the marital residence in October 2009 and established a new residence in Fort Lee, New Jersey in order to seek a no-fault divorce in that jurisdiction [FN2]. It is also undisputed that the parties' three children (two of whom are emancipated) chose to remain with defendant in the marital residence and that they refuse to have any contact with plaintiff.

Defendant and the parties' emancipated son, G. Jr., have "Stay Away" Orders of Protection for a two-year period against plaintiff that were obtained on April 5, 2010. [*3]

Defendant alleges that plaintiff has been a chronic marijuana smoker and drug user for the past twenty-seven years. He states that on or about December 27, 2005, he found plaintiff unresponsive from a drug overdose in the bathtub and that he had her taken to the emergency room where she was admitted overnight for a drug overdose. Plaintiff denies that she overdosed on drugs, but admits that she was taken to the hospital after "being so emotionally distraught and angry at [her] husband," and that she entered the bathtub and kept her eyes closed in an attempt to make defendant "become concerned." Plaintiff admits to being an occasional marijuana user in the past.

Plaintiff has a Nursing School Diploma and is employed as a Registered Nurse at North Shore University Hospital. In her Statement of Net Worth, plaintiff states that she earned $64,644.00 in 2009 as per her 2009 W-2 statement, which she does not attach. Plaintiff, however, attaches her pay stub which reflects that as of December 30, 2010, plaintiff earned $96,625.89. Plaintiff does not provide any tax returns.

Defendant is a vascular surgeon who owns his own practice. His 2009 individual income tax return reflects a gross adjusted income of $800,680.00.

Plaintiff's Net Worth Statement reflects that her monthly expenses total $12,724.00. This amount includes, among other expenses, rent for her Sea Cliff, New York apartment ($1,650.00), utilities ($360.00), automotive payments and upkeep ($924.00), recreational and vacation expenses ($1,135.00), medical expenses, comprising for the most part of plaintiff's psychotherapy treatment ($1,242.00)[FN3], and miscellaneous expenses which are comprised of loan payments to her sister and other creditors ($4,272.00). She lists liabilities in excess of $100,000.00 in credit card debt and personal loans.

Defendant's Net Worth Statement reflects that his monthly expenses total $47,717.85. In his Reply Affidavit, defendant represents that he cut out discretionary and recreational expenses which lowered his expenses by $8,250.00 per month, thereby reducing his total monthly expenses to $39,467.85. Defendant's expenses include expenses related to the marital residence ($8,598.85: mortgage, amortization, alarm), carrying charges on the marital residence ($2,217.00), various insurance expenses ($4,297.00), educational expenses ($14,100.00: college and graduate school tuition and school related expenses for the three children) and miscellaneous expenses ($5,053.00: children's allowances and living expenses)[FN4]. His net tax payment (after refund) was $255,432.00 in 2009.

Defendant does not dispute plaintiff's contention that during the marriage he paid all of the carrying charges associated with the marital residence and all other family expenses including, inter alia, insurance premiums and unreimbursed medical expenses, psychiatric care [*4]for plaintiff, car payments, gasoline and related expenses for plaintiff's car, food and fine dining. Plaintiff states that she was free to use her income for personal spending and that, additionally, defendant provided her with $400.00 per week in discretionary spending money.

The parties and the children are currently covered by health insurance provided by plaintiff's employer. Plaintiff argues that defendant should be required to pay the health insurance cost, to wit: $320.00 per month, which is subtracted from her paycheck, and to continue to pay his and the parties' unemancipated son's unreimbursed health care expenses. It is undisputed that during the marriage, defendant voluntarily reimbursed plaintiff for medical and dental insurance and unreimbursed medical costs. Defendant states that he is willing to pay for the children's unreimbursed medical expenses, not plaintiff's unreimbursed medical expenses.

Plaintiff seeks $25,000.00 in interim counsel fees. She argues that she is unable to pay counsel fees on her salary and that she has no available assets from which to do so. Plaintiff states that she paid her previous counsel $10,000.00 and that she paid her current counsel a $15,000.00 retainer in connection with a now discontinued previous divorce action. On October 14, 2010, she executed a new retainer agreement with her counsel with respect to the instant matrimonial action in which she acknowledges that she owes them $29,105.00 for past representation in lieu of a retainer fee. Defendant attaches a retainer agreement which reflects that he owes his counsel a $10,000.00 retainer fee for the current action. He states that he is unable to pay his counsel since he had to pay for the valuation of his medical practice, and that his attorneys have agreed to wait for payment.

DECISION AND ORDER

In determining an award of pendente lite maintenance in matters commenced after October 12, 2010 [FN5], the Court is required to apply the new mandatory pendente lite maintenance guidelines enacted by the legislature. See D.R.L. § 236 B (5-a). In order to determine temporary maintenance awards pursuant to the new statute, calculations are based upon each of the parties' annual income as defined by the statute. The Court must order the presumptive award of temporary maintenance unless the Court finds that the presumptive award is unjust or inappropriate. For purposes of maintenance calculations annual income is gross income minus FICA and Medicare (7.65%).

Plaintiff contends that pursuant to the new temporary maintenance formula the presumptive amount of maintenance that defendant would be required to pay based upon an income capped at $500,000.00 is $11,422.00 per month. Plaintiff uses her 2009 income which she states is $64,688.00 in her calculations. Defendant contends that the maintenance calculations should be based upon plaintiff's 2010 income of $95,000.00. Defendant also argues that the Court should deviate from the statutory formula because of plaintiff's earning capacity, her dissipation of marital assets and because granting her request would render defendant unable to meet the parties' marital financial obligations., [*5]

Defendant states that plaintiff has wastefully dissipated marital assets throughout the marriage by refusing to work full time, by engaging in daily use of marijuana and alcohol, by pawning and re-pawning marital jewelry which defendant redeemed, and by incurring high interest credit card debts. Defendant states that plaintiff further dissipated marital assets when she commenced and pursued a frivolous and now discontinued prior action for divorce that cost the parties collectively approximately $82,000.00 in legal fees.

Since the only document substantiating plaintiff's income is her pay stub which reflects that as of December 30, 2010, plaintiff earned $96,625.89, the Court will base its calculation on this number. As such, defendant/payor's annual income is $486,128.40: $500,000.00 (gross capped income) minus $13,871.60 [FN6] (FICA and Medicare), and plaintiff/payee's annual income is $89,234.00: $96,625.89 (gross income) minus $7,391.88 [FN7] (FICA and Medicare).

The new guidelines provide that a Court multiply a payor's income by thirty (30) percent and subtract from that sum twenty (20) percent of the payee's income. The resulting amount is then compared to calculating forty (40) percent of the parties' combined income and subtracting from that sum 100% of the payee's income. The lesser of these resulting amounts would be the "presumptive award" of temporary maintenance. After doing these calculations, plaintiff's presumptive temporary maintenance award is $127,991.72 per year or $10,249.31 per month absent any finding that the presumptive amount would be unjust or inappropriate based on the factors delineated in D.R.L. § 235 Part B (5)(e)(1).Here, the presumptive temporary maintenance award does not take into account significant expenses that the parties are obligated and that defendant is voluntarily paying. Chief among these is the carrying charges for the marital residence, totaling $10,815.85 per month ($129,790.20 per year), school tuition (college and graduate school) and living expenses for the parties' three children totaling $14,100.00 per month ($169,200.00 per year), 100% of the expenses relating to defendant's and the parties' three children's automobiles (including maintenance, upkeep, gas and car payments) of his and the three children's automobiles, and 100% of the expenses related to the support and other basic living expenses (including food, clothing) for defendant and the parties' three children.

Pursuant to the new statute, the Court can deviate from the presumptive amount in the event it would be unjust or inappropriate based on nineteen factors delineated in D.R.L. § 236 Part B (5-a)(e)(1). These factors include the age and health of the parties, the earning capacity of the parties, a party's care of children that inhibits his or her earning capacity, the need for the party to pay for exceptional additional expenses for the parties' children, the contributions of the party seeking temporary maintenance to the marriage, the wasteful disposition of marital property, the existence and duration of a pre-divorce separate household and any other factor that the Court finds to be just and proper. [*6]

After considering the statutory factors and the specific circumstances of this case, the Court finds that the presumptive amount of temporary maintenance in the amount of $127,991.72 would be unjust and inappropriate. The Court reaches this determination after taking into account the following: (1) the excellent health of both parties, (2) the plaintiff's 2010 earnings of approximately $100,000.00, (3) the defendant's voluntary payment of 100% of all expenses relating to the children's support, well-being and education, (4) the defendant's voluntary payment of 100% of the expenses related to the marital residence, (5) plaintiff's wasteful disposition of marital assets in accumulating credit card debt and pawn shop debt which defendant has voluntarily paid, (6) plaintiff's establishment of her own pre-divorce separate residence and (7) plaintiff's conduct which has resulted in the children relying 100% on defendant for financial and other support.

Based on all of the above, the Court deviates and determines the amount of temporary maintenance awarded to plaintiff to be $63,995.86 per year or $5,332.99 per month, pendente lite. This maintenance award reduces the presumptive maintenance award by one half. Accordingly, branch "1" of plaintiff's application is GRANTED TO THE EXTENT THAT defendant is directed to pay plaintiff maintenance, pendente lite, in the sum of $5,332.99 per month. The first payment of spousal support shall be made on September 1, 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. Retroactive sums due by reason of this award shall be paid at the rate of $750.00 per month, in addition to the sums awarded, until all arrears have been satisfied. Defendant is entitled to an offset for any sums paid during the pendency of this application.

That part of branch "2" of plaintiff's application which seeks an Order directing defendant to continue to reimburse plaintiff for the cost of medical and dental insurance for the parties and their children is GRANTED UPON CONSENT of the defendant. That part of branch "2" of plaintiff's application which seeks an Order directing defendant to pay unreimbursed healthcare expenses for the parties' unemancipated child is also GRANTED UPON CONSENT of the defendant. Plaintiff is responsible for her own unreimbursed medical and dental expenses.

Interim counsel fee awards are determined pursuant D.R.L. §237 which has been amended to provide that there is a "rebuttable presumption that counsel fees shall be awarded to the less monied spouse." Where an interim counsel fee is requested no detailed inquiry is warranted. See Priceph v. Priceph, 52 AD3d 61. Awards of interim counsel fees to a nonmonied spouse are warranted where there is a significant disparity in the financial circumstances of the parties, in order to avoid compromising the ability of the nonmonied spouse to adequately litigate the case. Id. See Penavic v. Penavic, 60 AD3d 1026. In this case, there is no doubt that plaintiff is the less monied spouse.

Accordingly, branch "3" of plaintiff's motion is GRANTED in that counsel fees are awarded to plaintiff's counsel in the amount of $25,000.00 to be paid by defendant directly to plaintiff's counsel within thirty days of this Decision and Order. This award is made without prejudice to further applications for additional sums, as necessary at time of trial or sooner. [*7]Ritter v. Ritter, 135 AD2d 431; Jorgensen v. Jorgensen, 86 AD2d 861.Accordingly, and based on the foregoing, it is hereby

ORDERED that defendant, G. V., shall pay directly to GASSMAN, BAIAMONTE, BETTS & TANNENBAUM, P.C., a lump sum amount of $25,000.00 as and for legal fees, which shall be paid by CERTIFIED CHECK on or before September 21, 2011; and it is further

ORDERED that upon failure of defendant to pay plaintiff's counsel as set forth hereinabove, plaintiff's counsel may file an Affidavit of Non-Compliance with the Clerk of this County, who shall enter a judgment, with statutory interest as of the date of this Order, in favor of GASSMAN, BAIAMONTE, BETTS & TANNENBAUM, P.C., attorneys for plaintiff, without further proceedings.

Any other relief requested not specifically addressed herein is denied. This constitutes the decision and order of this Court.

Dated: Mineola, New York

August 22, 2011

__________________________________

Hon. Norman Janowitz

Footnotes


Footnote 1: Hereinafter, the wife will be referred to as plaintiff and the husband will be referred to as defendant.

Footnote 2: Plaintiff now resides in Sea Cliff, New York.

Footnote 3: Plaintiff's Statement of Net Worth shows that of the $1,242.00 per month in medical expenses, $1,100.00 is comprised of her "desired" psychotherapy expense. Her actual psychotherapy costs, however, are $137.00 per week or $548.00 per month after insurance.

Footnote 4: Defendant states that both parties agreed and promised to support their emancipated children while they attended graduate school.

Footnote 5: Since plaintiff-wife commenced her action on October 14, 2010, pendente lite maintenance is determined pursuant to the newly enacted mandatory temporary statutory guidelines.

Footnote 6:

This number was calculated as follows: $106,800 (Social Security wage base) x .062 (Social Security tax rate) = $6,621.60, plus $500,000.00 (defendant's statutorily capped gross income) x .0145 (Medicare tax rate) = $7,250.00, equals $13,871.60.

Footnote 7: This number was calculated by multiplying $96,625.89 by 7.65%.