The following e-filed documents, listed by NYSCEF document number (Motion 001) 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 64, 65 were read on this motion to/for PENDENTE LITE.

The following e-filed documents, listed by NYSCEF document number (Motion 002) 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 66, 67, 68, 69 were read on this motion to/for PENDENTE LITE.

Upon the foregoing documents, the motion by Defendant A.D. ("Husband") for an order awarding him pendente lite custody of the parties' son, A.J. (d/o/b: X/X/20XX), exclusive use and occupancy of the parties New Jersey home, and exclusive use of the BMW; and restraining and enjoining Plaintiff A.D. ("Wife") from communicating with Husband's clients, co-workers, family members and friends, and from damaging, dissipating, and transferring marital property, is granted in part.

Upon the same record, Wife's motion for an order awarding her pendent lite maintenance in the sum of $15,000 per month and child support in the sum of $5,000 per month; directing [*2]Husband to continue paying 100% of the children's add-expenses, 100% of the rental and utility costs of the martial apartment in Manhattan, 100% of Wife's therapy expenses, and all of the insurance expenses; holding Husband in contempt of the Automatic Orders; and awarding Wife interim attorney's fees in the sum of $100,000, is granted in part.

This is a long term, nearly twenty-year marriage. The parties were married on February 10, 2001 and have two children: A. who is 19 (d/o/b: X/X/20XX), and A.J. who is 17 (d/o/b: X/X/20XX). It is undisputed that A. and A.J. suffer from significant and serious mental health issues that require extensive therapy and other services, including hospitalization for suicide attempts.

Husband is 54, and Wife is 51. Husband is a partner at [the law firm]; according to the parties' 2020 joint tax returns, his adjusted gross income was $1,485,154. Wife gave up her career as a "high net worth account specialist at Smith Barney" and dedicated her time to taking care of the parties' home and raising A. and A.J. However, she is now seeking work as a "freelance costume designer" but earns "no money."

The family enjoyed a moderately comfortable lifestyle during the marriage. They rent a penthouse apartment in Manhattan []. In July of 2020, they purchased a three-bedroom home in [] New Jersey which is worth approximately $750,000. They have a housekeeper for both homes. They have a time-share in St. John US Virgin Islands and took family vacations. A.J. is receiving extensive therapeutic and educational support in private institutions in Manhattan.

On October 8, 2020, Wife commenced this action. Thereafter, the parties apparently attempted to reside together for a while in order to support A.J. as he struggled with his mental health issues. According to Husband, however, Wife's constant abuse of him in front of the children caused them strife and made it impossible to live together. Therefore, as of about April 2021, Wife and A.J. have resided primarily in the Manhattan apartment and Husband and A. have resided primarily in New Jersey.

The children's mental health issues and treatment therefor are at the heart of this dispute. Indeed, Husband's pendente lite motion was precipitated by Wife's alleged refusal or inability to follow the advice and recommendations of A.J.'s medical providers — and in some cases direct interference with A.J.'s treatment — after A.J. was hospitalized and ultimately expelled from [high school]. After being enrolled in various institutions, A.J. was set to begin attendance with [another school] in April 2022.

The record also shows that Wife engaged in erratic and harmful conduct toward Husband during this litigation, including posting disparaging comments about him and A. on social media and texting disparaging remarks to Husband's family and friends. She burned Husband's suits and the parties' wedding album on the terrace of the Manhattan apartment. On the other hand, Wife claims that Husband is attempting to punish her and control her financially by cutting off her access to the parties' joint accounts from which she paid her bills, and by alienating A. from her. She states that Husband has not actually spoken to A.J. since January of 2022, refuses to communicate with her about A.J.'s treatment, and is only "sporadically" involved with his providers.

On February 22, 2022, and on consent of both parties, this Court granted Husband exclusive occupancy of the New Jersey home and granted Wife exclusive occupancy of the Manhattan apartment; enjoined Wife from communicating or contacting Husband's co-workers, [*3]family members, and friends; and enjoined Wife from damaging, dissipating, and transferring martial property and Husband's personal property.

On March 7, 2022, following oral argument on Wife's order to show cause, this Court granted her the following interim relief: (1) pendente lite maintenance in the sum of $3,000 per month; (2) pendente lite child support in the sum of $1,000 per month; (3) an order directing Husband to continue paying 100% of the following expenses: the rent and utility costs of the Manhattan apartment, the children's add-on expenses including tuition and mental health treatment, Wife's therapy expenses, and all of the insurance expenses; and (4) interim attorney's fees in the sum of $25,000.

In his responsive papers, Husband consented to continue paying 100% of the rent and basic utilities for the Manhattan apartment (gas and electric, but not cable, internet, and phone) amounting to $10,300 per month; 100% of the children's tuition, medical, and mental health expenses amounting to $5,000 per month; health insurance for the entire family amounting to $2,500 per month; and Wife's therapy expenses amounting to $500 per month. He demonstrated that he receives a $30,000 per month draw from [the law firm] ($34,000 prior to April 2022, when $4,000 per month 401K contributions recommenced) which sum must cover all of the family's expenses. These expenses amount to approximately $30,000 as follows: $18,300 paid on behalf of the Manhattan apartment, the children's tuition and medical/mental health expenses, family health insurance, and Wife's therapy (listed above); plus another $11,000 in monthly expenses, which include $5,000 carrying costs for the New Jersey home, $1,500 life insurance premiums, $500 for Husband's own therapy expenses, and $4,000 per month in loan repayments.

Husband also showed that his March 2022 bonus will be used to pay the parties' 2020 and 2021 tax obligations, and the costs of A.J.'s tuition and recent treatment at a mental health/rehab residential facility. As of March 7, 2022, Husband incurred approximately $22,000 in legal fees, $10,000 of which he had paid. Consequently, Husband requests that Wife be awarded monthly maintenance of $3,000 per month and monthly child support for A.J. of $1,000 per month; he agrees to continue to cover all of A.'s living expenses, as she lives with him in New Jersey.

During the pendency of this motion, Wife changed attorneys. In her responsive papers (opposition to Husband's motion and reply in further support of her motion), Wife did not dispute Husband's showing as to his monthly income, the family's monthly expenses, and that all of his income is exhausted by all of the family's expenses. She simply reiterates that Husband earns almost $1.5 million per year as a partner (which would amount to $62,500 per month prior to taxes) and receives "sizable" bonuses. She questions the substantial loans identified by Husband and points out that the family does not have sizeable savings because they lived a lifestyle that permitted her to "shop in high end stores," and to travel and eat out frequently.

Wife did, however, withdraw her request for an order directing Husband to continue to pay 100% of the carrying costs for the martial homes, children's add-ons, and her therapy expenses, given Husband's agreement to continue making such payments; and withdrew her request for contempt. She also reduced her demand for $15,000 per month in maintenance and $5,000 in child support, to a total of $10,000 per month in unallocated support based on the parties' pre-separation lifestyle. In support of her lifestyle claim, Wife relies on her Statement of Net Worth, which shows monthly expenses (not including rent, utilities, and maintenance costs for the Manhattan apartment) of $3,000 for food; $1,597 for clothing; $4,356 for vacations and other recreational expenses; and $1,540 for miscellaneous beauty, spa, and unidentified loan payments, for a total of $10,493 per month. She seeks an additional $75,000 in interim legal [*4]fees in order pay for her new attorneys, and to cover the upcoming litigation expenses.

It is well-settled that temporary spousal maintenance under DRL §236(B)(5-a) "creates a substantial presumptive entitlement" to the non-monied spouse. Khaira v Khaira, 93 AD3d 194, 197 (1st Dept 2012) ("The new provision, rather than aiming merely to "tide over" the non-monied spouse, creates a substantial presumptive entitlement. In an effort to provide "consistency and predictability in calculating temporary spousal maintenance awards", the Legislature created formulas for the court to apply to the parties' reported income, as it did when it enacted the Child Support Standards Act."). The statutory formula requires a calculation of the presumptive amount of temporary maintenance based upon given percentages of the parties' respective incomes (up to $203,000 of the payor's income). DRL §236(B)(5-a)(b)(5). If the payor earns in excess of $203,000, the court must calculate the payors income up to and including the cap and then determine whether an additional amount of maintenance should be awarded taking into consideration any of the factors specified in the statute. DRL §236(B)(5-a)(d) and (h)(1).

The temporary maintenance statute uses a similar definition of income as that set forth in the Child Support Standards Act (the "CSSA") at DRL§ 240 (1-b)(b)(5). DRL §236(B)(5-a)(b)(4). Income for the purposes of calculating temporary maintenance is defined as total income that was or should have been reported in the most recent tax return plus income from income-producing assets. DRL§ 240 (1-b)(b)(5)(i).

The Court finds Husband's 2020 income to be $1,485,154 and Wife's income to be $0.00, based on the parties' joint tax returns filed for that year; the Court was not provided with the parties' 2021 tax returns or other complete income information for 2021.

Where, as here, the payor is obligated to pay child support, the first step in determining an award of temporary maintenance is to perform two calculations up to a cap of $203,000. DRL 236B(5-a)(c)(1). The lesser amount of the two calculations is the guideline amount of temporary spousal support. The first calculation is the difference between 20% of the payor's income (up to the statutory cap) and 25% of the payee's income. The second calculation is 40% of the parties' combined incomes, less the payee's income.

Calculation 1: [20% of $203,000 = $40,600] - [25% of $0.00 = $0.00] = $40,600

Calculation 2: [40% of $203,000 = $81,200] - [$0.00] = $81,200

The guideline amount of temporary maintenance is $40,600 per year, or $3,383.33 per month (the lower of the two foregoing results). Under the circumstances of this case, the guideline amount of maintenance, standing alone, is unjust and inappropriate after considering the relevant factors under DRL §236B(5-a)(h)(1), as follows. The parties were married for nearly twenty years and are now each in their early 50s. Husband is a successful lawyer, a partner in a New York City law firm. Wife forewent her own career as an account specialist with Smith Barney to raise the parties' children and take care of their homes. The parties enjoyed a moderately comfortable Manhattan lifestyle prior to their separation. A.J. receives extensive therapy and educational services in private institutions in Manhattan. Wife's potential earnings as a "freelance costume designer" are speculative at best. It is undisputed that the rent and basic utilities for the Manhattan apartment amount to $10,300 per month, and that Wife has other monthly expenses for which she will need support.

Indeed, this Court previously ordered Husband to pay, in effect, more than the statutory guideline. By interim order dated March 7, 2022, this Court directed, inter alia, Husband to pay pendente lite 100% of the rent and basic utilities for the Manhattan apartment amounting to $10,300 per month, 100% of Wife's therapy expenses, and $3,000 per month in cash to cover her other expenses. Presuming that 50% of the rent and utility payments could be allocated toward maintenance for Wife, her interim pendente lite maintenance award amounts to approximately $8,650 per month ($5,150 for shelter costs, $500 for therapy, and $3,000 cash). The question now becomes whether and to what extent Wife should be awarded more than the $3,000 in cash Husband is now paying to meet her reasonable needs and considering Husband's financial ability to pay. See Khaira v Khaira, 93 AD3d at 200 (formula for maintenance in DRL covers "all the spouse's basic living expenses, including housing costs as well as the costs of food and clothing and other usual expenses"); Abramson v Gavares, 109 AD3d 849, 850 (2d Dept 2013) (pendente lite support award "should be an accommodation between the reasonable needs of moving spouse and financial ability of other spouse.").

To answer this question completely, and because Wife seeks $10,000 per month in unallocated support (temporary maintenance and child support), the Court must consider the amount of child support Husband would be required to pay under the DRL. In awarding temporary child support, the court can but is not required to consider the CSSA guidelines. DRL §240(1-b)(c); Rubin v Salla, 78 AD3d 504, 505 (1st Dept 2010). Pursuant to the CSSA, to calculate the presumptive amount of child support, the court must first determine the combined parental income.

After accounting for temporary maintenance to Wife under the CSSA in the sum of $40,600 per year, the parties' combined parental income $1,386,069.79. The pro rata share of the combined parental income is 97% to Husband and 3% to Wife. Applying these percentages up to the statutory cap of $163,000, using 25% for two children, results in basic child support obligation of $40,750.00 per year or $3,395.83 per month. DRL §240(1-b)(2); DRL §240(1-b)(3)(i). Husband' 97% pro rata share of that sum is $3,296.36 per month for both children. Of course, as A. lives with Husband, he is not obligated to pay support to Wife for her and his monthly obligation is actually less than $3,296.36.

For the reasons that follow, the Court declines to award the guideline amount of maintenance in the sum of $3,383.33 per month, plus the guideline amount of child support for A.J., and instead awards Wife total unallocated support in the sum of $5,000 per month cash, in addition to the monthly expenses Husband is paying pursuant to this Court's interim Order dated March 7, 2022. The record demonstrates that given the length of the parties marriage, their ages, their earning capacities, their lifestyle, and the other relevant statutory factors, including the fact that Husband is solely supporting A. at the New Jersey home, Wife is entitled to, and Husband shall continue to pay: 100% of the rent and basic utilities for the Manhattan apartment in which Wife lives with A.J.; 100% of the children's tuition and add-on expenses including medical and mental health costs; 100% of the family health insurance premiums; 100% of Wife's therapy expenses; and unallocated support in the sum of $5,000 per month. The expenses paid on behalf of Wife and A.J. — which amount in all to $18,300 per month — completely cover Wife and A.J.'s shelter allowance, Wife's therapy expenses, and more than Husband's statutory share of the children's add-ons. Moreover, Wife's monthly expenses of $10,493 appear to be aspirational more than real: she did not substantiate over $4,000 per month for vacations, and $3,000 per month for food.

Thus, a cash payment of $5,000 per month in unallocated support, in addition to Husband's continued payment of monthly expenses, will meet Wife's reasonable needs and is within Husband's ability to pay (see Abramson v Gavares, supra) and it is an amount that will permit A.J. to enjoy the same lifestyle as when the parties were together. See generally, Anonymous v Anonymous, 286 AD2d 585, 586 (2001) (child support obligation to be set "at an amount that would enable the child to significantly enjoy aspects of the parties' marital standard of living, to enhance her development, to fully provide for her education, her physical and psychological health, and consistent with the social milieu in which she is raised."). Such sum also does not result in a double shelter allowance. See generally Levin v Levin, 165 NYS3d 697, 698 (1st Dept 2022) ("a pendente lite award may be modified where a court awards an impermissible double shelter allowance resulting from directing the payment of both a child support award under the Child Support Standards Act and the carrying costs on the marital residence").

Accordingly, the Court finds that Wife is entitled to, and Husband shall pay, pendente lite unallocated support of $5,000 per month cash, in addition to paying, pendente lite, 100% of the rent and basic utilities for the Manhattan apartment; 100% of the children's tuition and add-on expenses including medical and mental health costs; 100% of the family health insurance premiums; 100% of Wife's therapy expenses; and the monthly insurance premiums.

Pursuant to DRL §237, the court may direct either spouse to pay counsel and expert fees 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. DRL §237(a) creates "a rebuttable presumption that counsel fees shall be awarded to the less monied spouse." An award of interim counsel fees is warranted where there is significant disparity in the party's financial resources. The less-monied spouse is not required to spend down all available funds to finance the divorce litigation. See Lennox v Weberman, 109 AD3d 703,704 (1st Dept 2013); Charpie v Charpie, 271 AD2d 169 (1st Dept 2000); Prichep v Prichep, 52 AD3d 61, 66 (2nd Dept 2008). The court should create a more level playing field so that litigation is shaped not by the power of the bankroll but by the power of the evidence. Silverman v Silverman, 304 AD2d 41, 48 (1st Dept 2003).

Here, Wife's request for additional interim attorney's fees in the sum of $75,000 is unreasonable at this time. Husband has paid Wife's former attorneys the $25,000 this Court previously awarded. Wife submitted on this motion the retainer with her new attorneys, which requires a $10,000 retainer payment of which she paid $1,500. Considering the present posture of this case, the work left to do, and the attorney's fees Husband incurred through March 7, 2022, the Court finds that Wife is entitled to an award of additional interim attorney's fees in the sum of $50,000, payable directly to her new attorneys.

Husband's request for temporary sole custody of A.J. is denied without prejudice, and the issue of custody is referred to trial. See Obey v. Degling, 37 NY2d 768, 770 (1975) ("Generally, a determination of that issue should be made only after a full and plenary hearing and inquiry"); Merch. v Caldwell, 198 AD3d 782, 783—84 (2nd Dept 2021) (general rule hat custody [*5]determination requires a hearing "furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child"). Suffice to say in the meantime, however, that there is "no prima facie right to custody in either parent" and the Court will consider all of the factors, facts, and circumstances in making its custody and relocation determination. Friederwitzer v Friederwitzer, 55 NY2d 89, 93—94 (1982). In this regard, pending final decision by this Court, the parties should support and encourage robust and meaningful parenting time between the children and each other, and any and all decisions about A.J.'s education, medical, mental health and other major issues, should be made jointly between the parties after they meaningfully confer with each other.

Accordingly, it is hereby

ORDERED that Husband's motion is granted, and Wife's motion, are each granted in part; and it is further

ORDERED that Husband shall pay $5,000 per month in unallocated support (temporary maintenance and child support) on the 1st of every month. The first payment shall be made on June 1, 2022. The award is retroactive to March 7, 2022, the date of Wife's pendente lite application. Credits for any payments made by Husband shall be deducted from the total arrears, and the remaining arrears amount shall be paid in full within 30 days of the date of this Order; and it is further

ORDERED that Husband shall pay pendente lite 100% of the rent and basic utilities for the Manhattan apartment (gas and electric, but not cable, internet, and phone); 100% of the children's tuition, medical, and mental health expenses; 100% of health insurance premiums for the entire family; 100% of Wife's therapy expenses; and the monthly insurance premiums; and it is further

ORDERED that Wife is entitled to an additional interim attorney's fee award in the sum of $50,000. Husband shall pay the sum of $50,000 directly to Wife's attorneys [] within 30 days of the date of this Order; and it is further

ORDERED that all custody issues are referred to trial.