The parties to this action are married and share two (2) young children in common. The parties were married on or about May 17, 2019. Prior to the marriage, the Wife maintained a career in the hospitality industry and the Husband worked in finance. Importantly, just prior to the parties' marriage, the parties entered into a comprehensive prenuptial agreement.

The parties dispute whether the decision for the Wife to serve as a homemaker was a [*2]joint decision. Notwithstanding, the clear marital status quo was the Husband being the financial provider for the family and the Wife staying at home. The parties then separated with the Husband moving close to Manhattan in New Jersey and the Wife finding a new rental near the former marital residence where she and the Children currently reside.

The Court notes that while much of this litigation has been defined by a lack of trust between the parties and a potent anxiety on the Wife's part as to her financial and housing circumstances if the prenuptial agreement is enforced as written, there is no genuine dispute that the Husband has and will continue to provide for the Children. The record shows both parents have a strong bond with their Children and seek only what is best for their daughters. The Court hopes this shared commitment to the Children can guide these parties back toward settlement and away from further litigation, which harms and does not help the Children.

The Wife moved by order to show cause on or about March 5, 2024, for various forms of pendente lite relief including, inter alia, an award of temporary spousal support, temporary child support, a direction that the Husband pay 100% of various child-related expenses, use of a family vehicle, legal fees, and repayment for the Wife's moving costs and various other debts.

Upon filing and after reviewing the underlying moving papers, the Court granted certain branches of the Wife's order to show cause seeking interim relief. Specifically, this Court awarded the Wife interim basic child support in the amount of $16,000.00 per month and an interim direction that the Husband carry 100% of the Children's add-on expenses. At that time, the Court directed briefing on the sequence and otherwise denied the other branches of interim relief for, inter alia, counsel fees. The Husband opposes except to the aspects of relief that he consented to or have otherwise been mooted.

The Court held multiple appearances on this matter and this Court put in extensive efforts to settle this matter to avoid further motion practice. Following these hours of court-involved settlement, the Court granted further interim relief in the form of an award of $50,000.00 as and for interim counsel fees to the Wife.

The Court granted the Husband's request for leave to submit a surreply in response to the claims raised in the Wife's reply papers. The Wife's counsel then sought this Court's permission to submit the Husband's drafted 2023 Tax Return, and the Husband's counsel consented on the condition that the drafted return be submitted with the letter from the Husband's accountant explaining the drafted return. The Court granted the request as stated by the Husband's counsel, and the draft 2023 Return and corresponding accountant's letter were added under this motion record.

The Court now resolves the Wife's omnibus pendente lite application. In doing so, the Court notes that the parties' prenuptial has not yet been invalidated but is being attacked under motion sequence 003. Importantly, the Court notes that from the record developed thus far, it does appear the Wife has potentially meritorious challenges to the terms of the prenuptial agreement.

The parties, in their prenuptial agreement, entered into mutual waivers of temporary spousal support. The law of this State is crystal clear — absent a judicial finding or legal exception, the parties' prenuptial agreement is presumptively valid and must be given effect by its terms unless and until it is successfully challenged. (See e.g., Anonymous v Anonymous, 123 [*3]AD3d 581, 582 [1st Dept 2014][" It is axiomatic that a duly executed prenuptial agreement is presumed to be valid and controlling unless and until the party challenging it meets his or her very high burden to set it aside."]).

The Wife raises various arguments seeking to have this Court, notwithstanding the prenuptial agreement, award temporary spousal support. This Court refuses to do so. Any determination as to the validity of these specific waivers must be resolved after a hearing — not on motion papers. While the Wife may very well demonstrate the maintenance provisions of the prenuptial agreement to be unenforceable, she has not done so yet. Accordingly, the Wife's request for temporary spousal support is DENIED without prejudice to be reasserted if the parties' prenuptial agreement's maintenance provisions are found unenforceable.

Likewise, her request for the Husband to pay her medical expenses or otherwise reimburse her for the same is DENIED as such costs would be barred under the maintenance waivers and otherwise by the debt provisions of the prenuptial agreement discussed infra.

Unlike the maintenance provisions of the prenuptial agreement, there is no waiver of child support. Indeed, as a matter of law, parents cannot waive child support in a prenuptial agreement. (See Cron v Cron, 8 AD3d 186, 187 [1st Dept 2004]). This is because an award of child support vindicates the Child's right — not either parent's right. (Matter of Leggio v Devine, 158 AD3d 803 [1st Dept 2018]).

"The objective of the [child support] statute is to shift the determination of child support awards away from a balancing of the expressed needs of the child and the income available to the parents and to a consideration of the total income available to the parents and the standard of living that should be shared with the child." (Bill v Bill, 214 AD2d 84, 88 [2d Dept 1995][internal citations omitted]; see also, Cassano v Cassano, 85 NY2d 649 [1995]; Governor's Approval Mem, 1989 NY Legis Ann, at 250 ["[C]hildren will share in the economic status of both their parents."]). Notably, in the context of a pendente lite award, this Court may, but is not required to, follow the CSSA. (DRL § 240[B][7]; see also, Rubin v Della Salla, 78 AD3d 504, 505 [1st Dept 2010]["Courts considering applications for pendente lite child support may, in their discretion, apply the CSSA standards and guidelines, but they are not required to do so."]).

Notwithstanding this Court's ultimate discretion to reject the outcome under the formula set forth by the CSSA in fashioning a temporary award, this Court finds reference to the CSSA as a helpful starting point for the analysis. The DRL § 240 temporary child support guidelines are as follows:

Step 1: Obtain the parties' CPI up to the statutory cap of $183,000.00. (DRL § 240[1-b][c][1]).

Step 2: Determine the applicable child support percentage and apply it to the CPI to determine the guideline temporary basic child support obligation. (DRL § 240[1-b][c][2]; DRL § 240[1-b][b][3]).

Step 3: Pro-rate the guideline basic child support obligation. (DRL § 240[1-b][c][2]).

The "heavy-lifting" for the courts predominantly concerns Step 1 — determining the incomes of the parents. There is no dispute that the Wife is currently not currently earning income; rather, the dispute is whether she should have income imputed to her based on her earning potential due to her previous successful career in the hospitality industry. From the perspective of the Husband's income, the issue of his income concerns to what extent this Court [*4]includes the Husband's non-recurring "separation-related payments" and his extensive assets in his income for the purposes of calculating child support.

As to the Wife's income, the Husband has sufficiently shown that the Wife has an earning potential and can re-enter the workforce, just not necessarily at the salary she once held. This is a short-term marriage of four and one-half years and the Wife has not been out of the workforce for such an extended period that would render her unable to enter the workforce. Further, she was very successful when she was employed in the hospitality industry. Specifically, she was an extremely successful sales manager for a global resort company (MGM) and undeniably still has marketable skills. The Father offers credible documentary proof to substantiate this argument. Further, the Father contends that the Wife was earning $150,000 at that position; she claims it was only $100,000. The Father also claims the Wife rejected an alternate job when her last position ended. Notwithstanding this showing, the Court is further cognizant of the fact that the Wife is not in the geographic location where she was previously employed and has not worked in a few years, and this inherently will impact the ease at which she both finds a job and earns commensurate to her pre-marital earnings. Thus, it would be improper to impute substantial income to the Wife; however, the Court does find it appropriate to impute only $60,000.00 per year to the Wife at this time. The Husband's financial superiority is made evident by the still immense imbalance between the parties even after this Court imputes income.

Regarding the Husband's income, the Husband's accountant's letter, tax returns, and Net Worth Statement demonstrate the following regular income and tax liabilities for the Husband:

Notably, as it relates to 2023, of the Husband's $7,667,064.00 of gross income, $5,898,893.00 were "separation-related payments." As is clear in the trends of Husband's post-tax income, there is a level of volatility to his income this Court cannot ignore. However, these "separation-related payments" can be properly considered as a part of income for calculating child support. (See Fishler v Fishler, 2 AD3d 487, 489 [2d Dept 2003]["Contrary to the appellant's contention, we agree with the Supreme Court that commissions, bonuses, and severance pay should be treated as additional earnings or income for the purposes of calculating the additional support due the respondent."]). This is especially so because the "separation-related payments" represented a large portion of the Husband's recent income. (See Matter of Cukova-Myers v Myers, 63 AD3d 1268, 1270 [3d Dept 2009][Affirming inclusion of non-recurring payment of capital gains in child support income determination where a "large portion of the parent's income derives" from the non-recurring payment.]).

As to the Husband's assets, his Net Worth Statement reveals $8,308,605.00 in business interests, $49,474,301.00 in investment accounts, and $985,262.00 in retirement accounts. The [*5]Court notes that these sums are not entirely liquid, and the liquidation thereof would certainly be impacted by tax consequences, marketability discounts, and other diminution. Notwithstanding, this Court does not blind its eyes to these assets in arriving at a child support award. (See Matter of Bram v Bram, 228 AD3d 933, 935 [2d Dept 2024]["[A] court, in its discretion, may attribute or impute income to the party from such other resources as may be available, including, but not limited to, non-income producing assets, perquisites that are provided as part of compensation for employment, fringe benefits provided as part of compensation for employment, and money, goods, or services provided by relatives and friends."]; Ogborn v Hilts, 262 AD2d 857, 858 [3d Dept 1999]; G.B. v N.P., 2024 NY Slip Op 51655[U], at *2-6 [Sup Ct, NY County 2024, Chesler, J.][Imputing income to both parents based upon substantial asset holdings]).

Considering the volatility of the Husband's income, the non-recurring nature of his inflated 2023 income, his extensive assets, and their liquidity, the Court finds it appropriate to impute income to the Husband in the amount of $2,500,000.00 for the purposes of calculating child support.

With incomes established, the Court now determines the total combined parental income (CPI). The total CPI for this family is $2,560,000.00. The Husband's income represents 97.66% of the CPI and the Wife's income represents 2.34% of the CPI. Their CPI income up to the operative child support statutory cap of $183,000.00 is $183,000.00. The presumptive guideline combined basic child support obligation is $3,812.50 per month, with the Husband being obligated to pay $3,723.14 per month. This result is plainly neither just nor appropriate for this family based upon, inter alia, the marital status quo, the immense wealth held by the Husband, the children's educational costs, the age and health of the parents, the status quo expenses of the Children, the increased transit costs inherent in the Husband's move to New Jersey, the young age of the children, and the lack of access to resources the Wife currently has. Accordingly, the Court finds justice requires deviation from the guideline amount.

Based on the reasons above, the Court finds an adjusted cap of $800,000.00 to be more appropriate (the adjusted cap) for consideration. (See Klauer v Abeliovich, 149 AD3d 617 [1st Dept 2017] [Affirming use of an $800,000.00 adjusted cap]). Under the adjusted cap, the Husband's basic child support obligation would be $16,276.04 per month. The Court further deviates upward based upon the specific fixed expenses of the young children including their $10,000.00 per month in rent and other costs such as food, school supplies, and the utilities on their home. Importantly, the parties' eldest daughter will soon be in elementary school, and this will invariably increase expenses. Accordingly, the Wife's request for temporary basic child support is GRANTED to the extent that the Husband is directed to pay the Wife a sum of $17,500.00 per month as and for temporary basic child support, subject to recalculation if the Wife is later awarded temporary maintenance.

While this sum is substantially lower than the Wife's listed expenses and requested award of around $26,000.00 per month, a review of her expenses reveals that the instant award is wholly appropriate. Some of the Wife's expenses are not reasonable or appear otherwise inflated. For instance, in her monthly expenses, the Wife states she spends $2,500.00 per month on vacations, $3,900.00 per month on household help (she does not work, and the Children attend school), and $3,500.00 per month on a Hampton's summer rental. In addition, she lists expenses that are indisputably paid for by the Husband. Thus, the award is in line with the Children's actual and reasonable needs.

As to add-ons, the Court directs the Husband to pay 100% of the Children's add-ons [*6]based on the marital status quo and the Husband's immense wealth and assets compared to the Wife's financial circumstances. Regarding childcare, the Wife explains that she has not worked outside the home for the entirety of the children's lives and that they have always used nannies even though she was the primary caregiver. Further, she notes that her current nanny is only part time, working only a few hours each day Monday to Friday, and generally is needed because the children often need to be in two different places at the same time. Accordingly, in line with the status quo, lifestyle, and practical needs of the children, the Husband shall also pay 100% of the part-time nanny as part of this interim award. It is the Court's expectation that the use of the nanny is not increased from what has been in place, unless the Wife becomes employed.

This award is made retroactive to the date of filing. (DRL § 240; Wolinsky v Berkwotz, 226 AD3d 433, 434 [1st Dept 2024]). The application was filed on or about March 5, 2024. This decision comes down in January 2025. This results in an arrear period of eleven (11) months. The Husband has been paying $16,000.00 per month based upon this Court's Interim Order, for which he will be credited. Thus, he holds arrears for $1,500.00 for eleven (11) months, resulting in a total presumptive arrearage of $16,500.00. This sum will be further reduced by any utility payments made by the Husband in these eleven (11) months as that is the time for which he paid the utilities to the Wife. He is also entitled to a credit for any childcare expenses he paid for the periods where the Wife would have been responsible for those expenses as described above. Thus, the Court directs that within fourteen (14) days of this Decision & Order, the Husband shall forward to the Wife receipts for all utility payments and childcare payments explained above. If the credits exceed the presumptive arrears, the remuneration for any credits in excess of $16,500.00 is referred to trial.

Accordingly, the Wife's request for temporary basic child support is GRANTED to the extent detailed herein.

The parties' prenuptial agreement provides, "[i]f either Party enters into a transaction wherein either Party becomes obligated on any debt, and unless a contrary intent is specifically and expressly stated, the obligation must be satisfied by the party incurring the obligation or liability wholly from that person's separate property, and that party must hold the other party and the other Party's property harmless from the obligation and must indemnify the other Party if the other Party is ever required to satisfy the obligation." Despite this, the Wife seeks repayments for two types of debt: (1) litigation-related expense debts; and (2) moving related debts.^[FN1] The first category is addressed below along with the issue of counsel fees.

While the prenuptial agreement indemnifies the parties against the debts they incur based upon their own transactions, it would be against public policy and the Children's best interests for this Court to view the entirety of the cost of the Wife's lease agreement and moving as a "transaction" as defined in the prenuptial agreement and not to an extent a child-related expense. Indeed, the Wife's entry into her specific lease agreement was based upon the Children's lives as [*7]they existed during the marriage as it was her clear intent to ensure stability by remaining near the neighborhood the Children lived in during the marriage, and where it was most reasonable based upon the Children's schools.

As a starting point, the Court of Appeals has specifically held this Court has the discretion to allocate housing costs in matrimonial proceedings as temporary maintenance or temporary child support. (Yunis v Yunis, 74 NY2d 787, 788 [1999]["In order to avoid protracted or inconsistent litigation, and to allow for appropriate appellate review, trial courts should, at an appropriate stage in the proceedings, definitively indicate in their decisions the amount of pendente lite payments made toward maintenance, child support and third parties (e.g., mortgage, taxes and insurance). The courts should also indicate how the third-party payments are allocated as between maintenance and child support [ . . .]."]). As advised by Yunis, this Court hereby determines that housing costs during the pendency of this action constitute temporary child support. The portion of the initial lease and security deposit payments relate to the Children's housing and are merely non-recurring child-related shelter expenses.

Public policy and the silence in the agreement as to child support and custody restrain the prenuptial agreement from ordering issues related to custody and child support. Particularly, these facts prevent the parties' prenuptial agreement from being stretched to prohibit the Husband from being held responsible for the Children's shelter costs because the possessory and use rights derived from that leasehold provide the benefit of shelter to the Children. (Welsh v Lawler, 282 AD2d 977, 979 [3d Dept 2001]["[S]helter for children has always been viewed as an inherent component of child support."]; Boyajin v Boyajin, 194 Misc 2d 756, 765 [Sup Ct, Nassau County 2003, Falanga, J.]["The law is well settled that housing is a component of child support."]). Holding otherwise would indemnify the Husband against his obligation to support his Children's reasonable and necessary housing costs. (See FCA § 413; DRL § 240[1-b][f]).

This repayment is made further necessary and appropriate because at this time there is no dispute that the Wife is and will remain residential custodian; thus, this family is structured in a way where the housing of the Children would always correspond with the housing of the Wife. The parties ordered their family this way and the Court will not undo this familial decision to indemnify the Husband against paying for the costs that were incurred moving the parties' daughters into a new home during the pendency of this action.

The Court acknowledges that the entire benefit of the lease is not to the Children, and the leasehold benefit to the Wife would otherwise be her "separate" liability alone under the prenuptial agreement, and the Wife is thus responsible for 50% of the costs. The Husband shall repay the Wife $10,000.00 for her first month's rent and security deposit.

Similarly, the Wife incurred $40,464.46 in costs related to moving. Like the lease agreement, part of these costs is directly related to the housing of the Children as their furniture and belongings had to be moved. Their new residence had to be properly furnished and established. Accordingly, the parents will likewise share 50/50 in those costs and the Husband shall repay the Wife $20,232.23 for the costs associated with moving the Children as this is likewise a non-recurring child-related shelter expense.

Accordingly, the Wife's request for repayment of her first month's rent, security deposit, and moving costs are GRANTED IN-PART to the extent that the Husband shall reimburse her for 50% of the aforesaid costs which were associated with moving the Children, with the Husband's obligation totaling $30,232.23.

The Wife seeks an award of interim counsel fees. The Husband opposes to the extent that he should not be directed to pay any amount further than the already court-ordered $50,000.00 and his $15,000.00 voluntary payment. The Husband argues that the prenuptial agreement has a pendente lite fee waiver that is presumptively valid and must be enforced until invalidated precluding any further interim fee award.

Counsel fee waivers in a prenuptial agreement do not bar an award of fees for litigation on the issues of custody and child support and those issues were not addressed in the prenuptial agreement. (See e.g., Ader v Ader, 205 AD3d 637 [1st Dept 2022]; Gottlieb v Gottlieb, 138 AD3d 30 [1st Dept 2016]). Indeed, the prenuptial agreement explicitly acknowledged these issues were outside of the fee waiver when the parties agreed, "[t]he laws of the State of New York provide that the parties prenuptial/premarital agreement may contract concerning any matter, including personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty and as long as the rights of a child to receive support are not adversely affected." Thus, even under the presumptive validity of the prenuptial agreement the Wife could recover counsel fees for child support and custodial issues. To be clear, this motion in-part and the extensive settlement and other legal work on this matter concerned child support and issues of visitation.

Even though there are fee waivers, they are not ironclad and without exception. (Kessler v Kessler, 33 AD3d 42, 48 [2d Dept 2006]["However, to the extent that such an award would otherwise be subject to the waiver contained in the prenuptial agreement, the Supreme Court, after careful and individualized scrutiny of the need for the same, may award the wife an attorney's fee as justice requires to enable her to carry on or defend issues of equitable distribution."]). Indeed, the Second Department has observed, "[t]he enforceability of a provision of a prenuptial agreement waiving the right to seek an award of an attorney's fee presents a clash of two competing public policies—that in favor of resolving marital issues by agreement and that in favor of assuring that matrimonial matters are determined by parties operating on a level playing field." (Id. at 45).

The First Department confronted this exact issue when Justice Hoffman awarded interim fees to a spouse despite a waiver of pendente lite fees in the parties' prenuptial agreement. (Soltanpour v Koch, 176 AD3d 570 [1st Dept 2019]). In Soltanpour, the First Department unanimously affirmed Justice Hoffman's award of $135,000.00 in interim counsel fees and explicitly stated, "[w]e reject the husband's argument that the fee waiver in the parties' prenuptial agreement precludes the attorneys' fee award. The circumstances weigh against enforcement of the agreement at this juncture, given the disparity in the parties' finances and the hearing, which revealed a potentially meritorious challenge to the terms of the prenuptial agreement." (Id. at 571).

Like Soltanpour, this case too is confronted with the unique circumstances where the record at this point does reveal a "potentially meritorious challenge to the terms of the prenuptial agreement" and a staggering "disparity in the parties' finances." Further, Soltanpour is no outlier. (See Maddaloni v Maddaloni, 163 AD3d 794, 795-795 [2d Dept 2018]; Abramson v Gavares, 109 AD3d 849, 851 [2d Dept 2013]["[T]he Supreme Court properly awarded the defendant interim counsel fees, notwithstanding a provision in the prenuptial agreement limiting, to the sum of $10,000, the plaintiff's obligation to pay such fees incurred by the defendant in any divorce action. Because of a strong public policy favoring the resolution of matrimonial matters on a level playing field."]). Likewise, the Second Department, in Kessler, affirmed an interim [*9]fee award despite an agreement to the contrary because of the vast disparity in net worths between the parties and the non-monied spouse having no income. (Kessler, 33 AD3d at 45). This Court faces the exact same concerns of both Soltanpour and Kessler.

The immense wealth imbalance between these parties has already tipped the scales in this case. Even without imputing income to the Husband and looking solely at his post-tax liability income one is able to quickly discern that the wealth gap is enormous. The Wife does not have a job and depends on the Husband's child support payment to survive. While she may soon re-enter the workforce, her salary will not be able to fund this litigation given the complexity of this matter and the now very litigious path this case has unfortunately taken. Frankly, the severely economically imbalanced circumstances of this case present a real concern that if enforced on its terms, the prenuptial agreement would render the Wife entirely unable to defend herself in this matter.

The short-term nature of the marriage does not support the notion that this Court should sanction litigation on unequal footing. Indeed, in that short time, the parties welcomed two children, and the Wife served as homemaker and primary caregiver for their children. These services by the Wife did provide a benefit to the Husband as she cared for the Children while he continued to be a successful financial advisor. The Wife's home economic contribution enhanced the Husband's earning capacity by reducing the opportunity cost associated with working while there are young children at home. Under the prenuptial agreement, despite these contributions and sacrifices to professional development, the Wife stands to leave with next-to-nothing outside of a monthly child support payment under the terms of the prenuptial agreement.

Beyond these factors, the Court further considers the dilatory tactics in this matter as further supporting this Court's instant finding that "the circumstances weigh against enforcement of the agreement at this juncture" as it relates to these interim counsel fees. In this case delay has played a significant role in this need for an award of counsel fees. It bears repeating that the parties have tried to settle this matter in mediation outside of court and they then spent hours with this Court attempting to settle the matter. These attempts were ultimately fruitless due in-part to the Husband's unreasonable positions on housing issues. This conduct, apart from an obvious time delay have without doubt increased the Wife's legal fees.

In sum, the Court must factor in the Husband's prolonging of this litigation (see Kessler, supra at 50 ["Moreover, whether or not either party here has improperly prolonged the litigation, or created needless litigation, etc., should also be considered by the court in determining the amount, if any, of an award of an attorney's fee to the wife."]).

The reality of this case is simple: without a counsel fee award, the Court would, in effect, be telling the Wife's counsel they must work for free and have a potential recovery of fees after a hearing or that the Wife, to avoid even further significant debt (which is a palpable concern of hers), should proceed pro se against a Husband who is well represented in this matter. (Frankel v Frankel, 2 NY3d 601, 607 [2004]["A matrimonial lawyer may be willing to carry a client on its accounts receivable books, but not as to accounts that will prove unreceivable."]). The facts before this Court demonstrate an absolute injustice would occur if this purported interim counsel fee waiver was given effect because the Wife cannot fund this litigation. Accordingly, public policy and the unique circumstances of this case demonstrate justice weighs against enforcement of the agreement's interim counsel fees waiver at this juncture.

Domestic Relations Law section 237 creates a rebuttable presumption that the monied spouse will pay the non-monied spouse's reasonable attorneys' fees during the pendency of a [*10]matrimonial action. "Domestic Relations Law § 237 embodies a public policy determination by the Legislature that matrimonial matters are best resolved by parties operating on a level playing field." (Kessler, supra at 47).

Indeed, over two decades ago, the First Department opined,

Recognizing this reality of litigation, the possibility that even a woman who had enjoyed an affluent lifestyle can end up in dire financial straits cannot be ignored. Ironically, the theoretical framework for the concept of the "feminization of poverty," normally applied to households headed by women with only limited or low-level employment opportunities, whose earnings and resources fall short of their families' basic needs (see, Rowe, The Feminization of Poverty: An Issue for the 90's, 4 Yale J L & Feminism 73, 74), becomes applicable to the affluent in this context. When a couple's affluence has been due to the earnings of the husband, and his wife's earnings are minimal in comparison with the family's lifestyle, their separation and their divorce proceedings can leave such a wife without funds and at the mercy of her ex-husband, whose cooperation in making support payments is the only thing keeping her and their children from a lifestyle of substantially reduced means.

These considerations should be kept in mind on an application for counsel fees in a matrimonial litigation where a wife has assets that, although considerable, are finite, while her husband's wealth is far greater and his earnings continue to amass. (Charpie v Charpie, 271 AD2d 169, 171 [1st Dept 2000]).

Here, unlike Charpie, the Wife does not have assets to draw from to meet the demands of virtually any attorneys' fees in this geographic area. Interim counsel fees are surely needed or else the inescapable reality of this case will vitiate the well-established public policy that "litigation is best shaped not by the power of the bankroll but by the power of the evidence." (O'Shea v O'Shea, 93 NY2d 187, 192 [1999]). This concern is serious in any matrimonial matter; but where, as here, custody is being litigated still, the policy is even stronger.

"In determining whether to award counsel fees, the court may consider such factors as the relative financial circumstances of the parties, the complexity of the case and the extent of legal services rendered, 'together with all the other circumstances of the case, which may include the relative merit of the parties' positions.'" (Armstrong v Armstrong, 72 AD3d 1409, 1416 [3d Dept 2010] citing DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881 [1987]).

Here, the financial circumstances of the case, the complexity of the case given the Husband's finances and the prenuptial agreement, the dilatory conduct, the extent of the legal services rendered which have now covered two law firms for the Wife with counsel being involved in previous mediation out of court, extensive settlement negotiation with this Court, and two (2) substantive motion sequences, with a Note of Issue not even on the horizon, clearly support an award of interim counsel fees.

The Court notes that in tailoring its fee award it does not ignore the Wife's positions on the issues of visitation, particularly regarding transportation methods and costs for the Children to travel to the Husband's parenting time, and the utilization of a parent coordinator. Further, this Court explicitly considers the Husband's voluntary counsel fee payment of $15,000.00 and this Court's interim award of $50,000.00 in counsel fees which the Husband paid.

The Wife's former counsel did substantial work on this matter and this motion sequence. Upon being relieved, the Wife's former counsel filed a charging lien for $182,737.00 in legal [*11]fees. The bills and retainer submitted by the Wife's former counsel demonstrate a retainer amount of $50,000.00 (the Wife received two loans secured by promissory notes to pay a substantial amount of this fee) and then an exhaustion of that retainer with an outstanding balance of $69,010.00 as of March 4, 2024. It is significant in understanding these fees that the Wife's first counsel was not relieved until on or about August 15, 2024. In her motion to be relieved, the Wife's first counsel produced legal bills demonstrating an outstanding balance of $113,727.31 as of June 28, 2024. A review of the legal fees and bills submitted demonstrates that based upon the legal services rendered, the attorney affirmation explaining the services rendered, the complexity of the matter, the skill of counsel, and the prevailing rates of counsel of similar caliber in this geographic area, the fees incurred by the Wife's first counsel are reasonable.

The Husband's argument as to redaction is without merit. (See Soiefer v Soiefer, 17 AD3d 268, 268 [1st Dept 2005]["The attorneys' bills were properly redacted to safeguard defendant's attorney-client privilege."]; Teich v Teich, 245 AD2d 41 [1st Dept 1997]). As stated, the Wife's first counsel submitted a well-detailed affirmation outlaying the nature of services that resulted in the incursion of fees thus providing the required information to assess the reasonable nature of the fees without compromising any confidential client information.

The Wife retained her current counsel for a retainer amount of $25,000.00. The bills submitted demonstrate that the Wife has exhausted her retainer, she then had a balance in the amount of $8,182.50 which she subsequently paid, and she now has an additional outstanding balance of $24,940.00 as of October 10, 2024. Accordingly, the total legal fees incurred by the Wife's second firm are $58,122.50 as of October 10, 2024.

The review of the bills of the Wife's current counsel reveals these sums are reasonable. The reasonable nature of these bills is evident given the skill of counsel, time expended, numerous discounts that resulted in free legal services, and the complexity of this matter. The Wife's second counsel has put substantial work into this matter. They commenced a motion sequence to challenge the prenuptial agreement, attended hours of court conferences and finished out this motion sequence after prior counsel was relieved during the pendency of this sequence. They have been directly involved in issues of child support and custody in this matter, as well as other equitable distribution, counsel fee, and maintenance issues. Critically, substantial and time-consuming services occurred after October 10, 2024, when the Wife's invoices end, including hours of time discussing settlement of the matter with the Court.

The Husband's argument in surreply as it relates to counsel fees fails to appreciate the volume of legal services rendered beyond the outstanding sum of $24,900.00 as of October 10, 2024. This sum does not represent the entire legal fees incurred. The Husband's argument would improperly narrow a monied-spouse's liability for interim fees.

Based upon these facts, the Court finds an additional interim award of counsel fees in the sum of $75,000.00 to be appropriate and absolutely necessary.

With reference to the litigation costs, the entire sum awarded by this Court combined with the Husband's voluntary payment still does not even satisfy the Wife's first attorney's charging lien. Moreover, as noted above, her second counsel has already rendered substantial legal services in this matter.

There can be no doubt that this award acknowledges the Husband's position of wealth but also acknowledges the Wife's "skin in the game" and her ability to make contributions toward her legal fees, as she already has to a degree. Accordingly, the Wife's request for counsel fees is GRANTED to the extent that the Husband shall pay to the Wife's attorneys, Berkman [*12]Bottger Newman & Schein LLP, the lump sum of $75,000.00 on or before February 14, 2025. This results in a total award of $125,000.00 as and for interim counsel fees to the Wife. (Compare, Soltanpour, supra at 570 [Affirming interim fee award of $135,000.00 despite the parties' prenuptial agreement having a interim counsel fees waiver]). This award is made without prejudice to the Wife's ability to seek future fees, including in connection with any hearing on the validity of the prenuptial agreement pursuant to its own terms (see Section 15.9) and is subject to reallocation by this Court.

The Wife sought various forms of relief that are now moot due to Interim Orders of the Court and the consent of the Husband. The branches of the Wife's Order to Show Cause as they relate to: (i) use of the Range Rover, (ii) enjoining the parents from recording one another, and (iii) directing the Husband to make certain tuition-related payments are resolved in accordance with the Court's Interim Orders which are all continued herein except to the extent they are modified by the relief in this Decision & Order.

This constitutes a Decision and Order of this Court on Motion Sequence 001.