Plaintiff commenced this action for a Judgment of Divorce on January 27, 2011. By Notice of Motion returnable October 17, 2011, he now seeks an Order [*2]directing defendant to pay temporary maintenance and counsel fees.^[FN1]

The parties were married in 1983. They have two children, aged 18 and 21, both of whom reside with defendant in the marital residence. Plaintiff moved out of the marital residence in June, 2010, and currently resides with his sister.

Plaintiff seeks an award of temporary maintenance based on the presumptive amount calculated pursuant to Domestic Relations Law §236B(5-a) [a]-[c]. Plaintiff reports his 2010 gross income at $7,831; and defendant's gross income at $209,235.26. Applying the statutory formula, the presumptive amount of temporary maintenance is $58,292.10 annually, or $1,121.00 per week.^[FN2]

The Court is authorized to adjust a presumptive award that is "unjust or inappropriate" (DRL §236B(5-a)[e][1]). While acknowledging that he obtained a Bachelor of Arts degree in 2002 and a Licensed Massage Technician degree in 2008, plaintiff maintains the parties made a joint decision that he would forego a career and maintain the household while defendant pursued her own career. Without question, defendant is gainfully employed as a vice president of human resources at a major corporate entity. Plaintiff is currently self-employed as a massage therapist.

Defendant acknowledges that the parties agreed plaintiff would stay at home when their first child was born, but only on a temporary basis. She points out that plaintiff enrolled in Ohio State University in 1999 and obtained his bachelor's degree in 2002. Starting in 2003, plaintiff attended a seminary program for two years. From 2004 to 2008, plaintiff attended Massage Therapy School.

Defendant's basic thesis is that plaintiff, who is 52 years old, is capable of working full time but refuses to do so. It is evident that over the past ten years he has pursued his own career initiatives (DRL §236B (5-a) [e][1][o]).

Both children currently reside with defendant. The parties oldest daughter has been diagnosed with Asperger's Syndrome in the Autism Spectrum. Defendant explains that she has set up a monitoring system that allows her daughter to stay at home while she is at work. This is not a situation where the needs of a disabled child have inhibited plaintiff's ability to pursue more gainful employment (DRL §236B (5-a) [e][1][j]). It is also important to recognize that defendant maintains family health insurance through her employer (Id at [e][1][I]); and is paying the carrying charges [*3]on the marital residence which includes a $2,168.00 monthly mortgage payment.

Notably, after plaintiff left the marital residence in July 2010, the parties closed out and split a joint account, with plaintiff receiving $45,249 — a sum he contends has been depleted for living expenses. In contrast, he acknowledges paying rent to his sister of only $300 per month since January, 2011, raising a concern as to the dissipation of the remaining funds (see DRL §236B(5-a)[e][1][e]).

Given the above, the Court can accept that plaintiff's contributions as a homemaker contributed to defendant's career, at least until he enrolled in college in 1999 (see DRL §B [5-a][e][1][p]). That being said, the Court agrees with defendant's premise that plaintiff's employment efforts throughout the marriage and at present have fallen short. The Court is not convinced that plaintiff's age or absence from the workforce has hindered his earning capacity at this point (DRL §236B (5-a)[e][1][c][k]). Plaintiff merely asserts that he is self employed as a massage therapist working out of a salon, without detailing the hours worked per week or his hourly rate or his efforts to procure more full time employment.

Accordingly, the Court finds that awarding plaintiff the presumptive amount of temporary maintenance would be "unjust and inappropriate". The Court has determined to impute $1,000 per week of gross income to plaintiff based (based upon a 40 hour week, at a rate of $25 per hour) (see Coon v. Coon, 29AD3d 1106). Utilizing this sum, and the guideline formula set forth in DRL §236B (5-a)[c], the temporary maintenance calculates at $937.10 per week. Since defendant covers the cost of health insurance, pays the carrying charges on the marital residence and has shouldered the primary responsibility for the care of the oldest daughter, the Court will reduce the amount of temporary maintenance to $500 per week, commencing as of the date of this application. Any retroactive payments due may be paid at a rate of $100 per week.

Plaintiff also seeks an award of attorney fees, seeking at least $5,000 towards continuing fees. The submissions include a copy of his retainer agreement, which recites an initial $3,000 retainer billed at a rate of $250 per hour (see Exhibit "H"), while plaintiff's counsel avers a $5,000 retainer was paid "and has been largely expended" (see affidavit of Michael Sutton, Esq. at paragraph 16).

Pursuant to DRL §237(a), there is a rebuttable presumption that the less monied spouse is entitled to an award of attorney fees so as to assure adequate representation from the commencement of the action. Both the applicant and his/her attorney are required to file affidavits detailing the financial agreement including "the amount of any retainer, the amounts paid and still owing thereunder, and the hourly amount charged by the attorney..." (Id). Here, plaintiff clearly qualifies as the less [*4]monied spouse but his affidavit and his attorney's affidavit are lacking detail as to the specific hours charged for specific services. Moreover, the request is keyed into estimated additional fees, without specifics. Nonetheless, in consideration of the relative resources of the parties, and to ensure that plaintiff is able to carry on with the action, the Court finds that plaintiff is entitled to an award of attorney fees in the amount of $2,500 (DRL §237(a); DeCabrera v. Cabrera-Rosete, 70 NY2d 879, 881).

In her responding papers, defendant seeks an award of exclusive occupancy of the marital residence. Since it is undisputed that plaintiff vacated the marital residence in June, 2010, the Court hereby awards exclusive occupancy of the residence to defendant. Insofar as the parties each seek an award of primary physical custody, the Court points out that both children are over 18 years of age. Defendant is, however, entitled to an award of child support given that the youngest daughter primarily resides with her. With respect to a pendente lite award, the Court is not required to deduct the maintenance award from defendant's gross income before applying the formula set forth in Child Support Standards Act (see DRL §240 [1-b] [b] [5] [vii] [c]; Leuker v. Leuker, 72 AD3d 655). Here, plaintiff's basic child support obligation is calculated by determining the parties' combined parental income, then multiplying the combined parental income up to $130,000 by the appropriate child support percentage and prorating each party's share in proportion to their share of the parties' combined income. Where the combined parental income exceeds $130,000, this Court must determine, "what amount, if any, of that excess income will be designated as part of the child support obligation by considering factors listed in Domestic Relations Law §240 (1-b) (f). If the Court finds, in its discretion, that strict application of the statutory percentages to the combined parental income in excess of [$130,000] would render the noncustodial parent's share unjust or inappropriate' deviation from that formula is appropriate" (Hammack v. Hammack, 20 AD3d 700; app dsmd 6 NY3d 807).

The CSSA defines the term "Combined Parental Income" as the income of both parents (Domestic Relations Law §240 (1-b) [b][4]). Pertinent here, "Income" includes the parties' gross (total) income as should have been reported in the most recent federal income tax return" (Domestic Relations Law §240 (1-b) [b][5]). Thus, when calculating the amount of temporary child support payable by the non-custodial spouse, this Court should rely on the most recent tax returns available (Coon v. Coon, 29 AD3d 1106, 1111).

As noted above, defendant's 2010 gross income was $209,220 and the Court has imputed $52,000 of income to plaintiff. Given that defendant has failed to specify the needs of the youngest daughter, the Court will determine plaintiff's basic [*5]child support obligation by multiplying the combined parental income up to $130,000 by the appropriate child support percentage (17%) and prorating each party's share in proportion to their share of the parties' combined income. Applying this formula, the Court finds that plaintiff's basic child support obligation is $87.89 per week pending the resolution of this action. To facilitate matters, defendant may offset this amount against the weekly maintenance ($500.00 - $87.89 = $412.11).

Accordingly, based on the foregoing, it is

ORDERED, that defendant shall pay to plaintiff temporary maintenance in the amount of $500.00 per week, retroactive to the date of the application pending the resolution of this action; and it is further

ORDERED that defendant shall pay past due amounts at the rate of $100 per week; and it is further

ORDERED, that defendant shall pay plaintiff's counsel the sum of $2,500 as attorney fees within thirty (30) days from the date this Decision and Order is served with Notice of Entry; and it is further

ORDERED, that defendant shall have exclusive occupancy of the marital residence pending the resolution of this action; and it is further

ORDERED, that plaintiff shall pay child support in the amount of $87.89 per week. For purposes of implementation, defendant may offset the child support against the maintenance payment - reducing the weekly payment due to $412.11.

This Memorandum constitutes the Decision and Order of this Court. This original Decision and Order is being returned to the attorney for plaintiff. The below referenced original papers are being mailed to the Rensselaer County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that Rule respecting filing, entry and notice of entry.

SO ORDERED

DATED: November, 2011

Albany, New York

___________________________________

Michael C. Lynch

Justice of the Supreme Court

Papers Considered:

1.Notice of Motion returnable October 17, 2011, with Affirmation of Michael Sutton

(undated) and Affidavit of RL dated September 30, 2011 with Exhibits [*6]

"A" - "H"; and

2."Answering Affidavit and Cross-Motion" of CL dated October 17, 2011;

Affidavit of Charles Wilcox dated October 17, 2011 with Exhibits "1" - "3".