The Husband moves by order to show cause for an order awarding, inter alia, pendente lite child support, spousal support, counsel & expert fees, and exclusive use and occupancy of the marital residence. The Wife opposes. The parties share two (2) unemancipated children.

The Husband seeks $20,000 in spousal support and $6,945.23 in child support. The Husband produces a W-2 wage statement for 2023 which demonstrates the Wife receives a salary of $365,000.04. Further, the parties' 2022 joint income tax returns demonstrate an income of $290,274.000. The Husband's net worth represents he has no income.

On the issue of the Husband's income, the Wife argues that income need be imputed to the Husband because while he is working, he is just not earning an income from his work. There is no dispute that the Husband has been engaged in many business ventures throughout the marriage. It is equally undisputed that these ventures have virtually never materialized into any income. Despite a listed income of $0.00, the Husband asserts that he is employed as a "consultant" on his net worth statement. Further, at oral argument and throughout his papers the Husband describes his business efforts as a "consultant."

On these facts, the Court finds it not only appropriate but necessary to impute income beyond $0.00 to the Husband because he is in fact working — his work is just not generating funds. What this shows the court is that the Husband does have skills he can use to earn an income — he is just using them on ventures that do not generate income. In these circumstances it is appropriate to impute income. (See e.g., Matter of Ramsen v Ramsen, 198 AD3d 658, 660 [2d Dept 2021][Affirming Support Magistrate's imputation of full-time income despite Mother only working part-time during the marriage because she was able to obtain full-time employment]).

The Husband avers that he is a consultant. The papers demonstrate he has been engaged in this consulting work for years. The success thereof is a separate issue. The Court may take judicial notice of "sources that are widely accepted and unimpeachable, such as reliable uncontested governmental records." (See 8 Carmody-Wait 2d § 56:25; see e.g. Sommers v. Sommers, 203 AD2d 97 [ 4d Dept 1994][approving judicial notice of government inflation statistics]). As is relevant here, the U.S. Bureau of Labor Statistics lists the average income for a consultant (a/k/a management analyst) as $126,450.00 for the State of New York. (See U.S. Bureau of Labor Statistics Occupational Employment and Wages, May 2023 13-1111 Management Analysts [free version available online at: https://www.bls.gov/oes/current/oes131111. htmNo.st]).

The Court does not have sufficient information to justify an imputation of the amount stated by the Bureau; however, it is illustrative of what the Husband could be earning. Notwithstanding, given the circumstances of the parties, and with specific attention to the Husband's admitted history of work with little to no pay, the Court finds it appropriate to impute an income to the Husband of $80,000.00. (See Leonx v Weberman, 109 AD3dc 703, 703-704 [1st Dept 2013]["A court need not rely upon the party's own account of his or her finances, but may impute income based upon the party's past income or demonstrated earning potential.]).

The Wife's income is $365,000.04 (see Mahoney-Buntzman v Buntzman, 12 NY3d 415 [2009]) and the Husband's imputed income is $80,000.00. The Wife's income must be adjusted for statutory deductions as specified in the Child Support Standards Act (CSSA). (See DRL § 240). Adjusting for statutory deductions, the Mother's income would be $334,577.82.

When calculating both child support and maintenance, maintenance is always calculated first. (See DRL §§ 236, 240).

The operative statutory cap for maintenance is $228,000.00. Under the statutory cap, the Wife's guideline maintenance obligation to the Husband would be $2,133.33. The Husband seeks $20,000.00 per month in spousal support, which there is no basis to award and which would be [*3]impossible for the Wife to pay. While the Court cannot acquiesce to the large sum sought by the Father it does find that the strict application of the statutory cap in this case to be inappropriate and the Court accordingly adjusts the cap for calculations to $325,000.00. The factors that support such deviation are: (i) the parties' standard of living, (ii) the age and health of the parties, (iii) the Wife's historical position as breadwinner, (iv) the Wife's historical position of having greater access to economic resources, and (v) the Husband's long-term employment without earning a reasonable income. (DRL § 236[B][5-a][h]). Under the adjusted cap, the Wife's obligation to the Husband is $3,750.00 per month as and for temporary maintenance. The Court finds this result reasonable, especially when reference is drawn to the economic circumstances of the parties is referenced, including the Husband's continuous employment without reasonable income. The Husband is not entitled to have the Wife in essence fund his business as he argues in his papers, nor is the Husband entitled to have the Wife subsidize his lifestyle of unreasonably working without income. He must find a job that pays commensurate with his experience and admitted long-term engagement in the field of consulting.

With maintenance calculated, the Court adjusts the parties' incomes after maintenance is accounted for in order to calculate child support. The Wife's income after adjusting for her aforesaid maintenance obligation is $289,577.82 and the Husband's income after adjusting for his aforesaid maintenance benefit is $125,000.00.

For the purposes of calculating temporary child support the Court may, but is not required to, follow the Child Support Standards Act (CSSA). (K.L. v J.B., 2023 NY Slip Op 51327[U], at *7-8 [Sup Ct, NY County 2023, Chesler, J.]; see DRL § 240[1-b][c]; Rubin v 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."]). Here, the parties' have two children which results in a child support percentage of twenty-five percent (25%). Under the CSSA, the current operative statutory cap is $183,000.00. Under the statutory cap, the Wife's child support obligation would be $2,662.99 per month and the parent's incomes would be at a pro-rata distribution of 70% to the Mother and 30% to the Father. The Court, for the same reasons above, and the additional fact that the parties' Children are now in their late teens and otherwise college aged, finds the statutory cap's application inappropriate to this family and improper for these children. (See generally, South Carolina Dep't of Social Servs ex rel. Sallie M.H. v James C.D., 119 Misc29 649, 654 [Fam Ct, Kings Cnty 1983]["[C]hild support is for the benefit of the child."]). In consideration of the circumstances specific to this family, the Court likewise adjusts the statutory cap for calculating child support to $325,000.00. Under the adjusted cap, the Wife's basic temporary child support obligation is $4,729.35 per month.

While the presumptive award using imputed income for the Husband and an adjusted cap of $325,000 yields a total monthly support obligation of $8,479.35, the Court's analysis cannot end there. Regardless of whether the Court imputes income to the Husband, the Court must fashion an award that takes account of the income actually available to the parties as well as the sums already being paid by the Wife to meet the family's needs.

The Wife's net monthly income is $22,916.67. She has been paying $8,250 each month for the rent on the marital residence where the Husband and one child live, as well her own rent of $3,582 each month. In addition, she has been paying all the older child's college tuition and room and board, which totals $6,621 each month. Further, she pays $5,491 each month for the younger child's private high school. She also pays various household expenses for herself and for [*4]the marital residence, and states she pays $2,500 a month for, inter alia, food and clothing for the marital residence.^[FN1] In other words, just these basic obligations deplete all of the Wife's monthly income. Moreover, the Wife's payment of the rent for the marital residence nearly meets the presumptive obligation calculated by this Court, and that is before factoring in a dollar-for-dollar credit for any room and board (or off campus housing) paid for the parties' college-aged child.

In addition, the Wife notes that over the years she poured hundreds of thousands of dollars into the Husband's business ventures "which either failed, never materialized or were false to begin with." Although these investments may constitute the infusion of marital income, rather than a "loan," it is certainly a valid concern how much has been invested without bearing fruit.

The Wife also alleges that the Husband stole from checking and credit card accounts in her name and never accounted for all the Federal and State tax refunds he received and which he never told her about. The Husband also claims to have $170,000 in credit card debt and to have borrowed $26,500 from family to meet his expenses.

While the parties dispute the Husband's role as caretaker during the marriage, it cannot now be disputed that the children who are in college and high school do not require the same type of care that younger children may need. Thus, for some time there has been nothing preventing the Husband from gaining income-producing employment in order to contribute to the children's costs as well as his own.

On the other hand, in order to maintain the status quo and to cover other basic necessities such as food, the Husband may as a practical matter require additional sums payable directly to him. Yet, awarding support that does not consider the Wife's payment of rent would result in an impermissible double shelter allowance. In consideration of all of these circumstances, the Court directs the Wife to continue paying all of the rents, tuitions and expenses she has been paying and to pay the Husband directly an additional $2,500.00 each month in unallocated support. Given the unique circumstances and financial constraints for this family, this award is not made retroactive to the date the motion was filed and is prospective in nature. In addition, the Wife shall continue to pay 100% of the children's add-on costs and may use the children's 529 accounts to pay such costs where appropriate.

Ultimately, the parties must have difficult conversations about how to reduce their monthly housing expenses as well as other basic monthly expenses, how they will pay for college for their younger child, how the Husband must earn an income rather than continue to engage in non-income producing projects, and how they can reasonably resolve this matter without unnecessarily litigating away whatever assets remain. Fortunately, the parties have some runway until August 2025 when the lease on the marital residence terminates. One thing is clear: what exists now is not sustainable.

The Domestic Relations Law creates a presumption that the monied spouse will pay for the reasonable attorneys' fees of the non-monied spouse. (See DRL § 237; De Cabrera v Cabrera-Rosete, 70 NY2d 879, 881 [1987]; see e.g., O'Shea v Oshea, 93 NY2d 187, 193-194 [1999]). Here it is simply the indisputable that the Wife is the monied spouse for the purposes of [*5]interim attorneys' fees.

The Husband presents a retainer agreement demonstrating an initial retainer amount of $15,000.00; with a variable increase of $20,000.00. The legal bills produced fail to demonstrate a retainer amount of $15,000.00 and show an initial payment of $10,000.00 which appears to be the retainer amount. In addition to the retainer, there was an additional sum of $10,000.00 paid in August of 2024. The Wife avers she has already paid the Husband $25,000.00 as and for counsel fees. The Husband's counsel states he was only paid $20,000. The total sum outstanding as of the Husband's billing statement dated September 30, 2024, was $36,619.19. The Court notes it does not include, as was done on the Husband's billing statement, the purported $15,000.00 retainer replenishment which appears to be at the end of each and every bill from the Husband's counsel (concerningly, this was present even where the Husband already had a retainer amount that was not exhausted). Accordingly, except for the superfluous inclusion of a $15,000.00 retainer replenishment, the Court finds the fees incurred reasonable in light of the circumstances of the case and the work and skill of counsel.

In assessing a fee award the Court, "should review . . . all the other circumstances of the case, which may include the relative merit of the parties' positions." (DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881 [1987]). Here, the Husband's request for $20,000.00 was outrageous and completely out of touch with the facts of the matter. Further, his position as to his income was equally concerning as the Husband seems to think the Court should award support without requiring him to work for pay. Accordingly, in light of the circumstances and the Wife's already advanced payments, the Court wards the Husband $25,000.00 as and for interim counsel fees. (Charpie v Charpie, 271 AD2d 169, 170 [1st Dept 2000]). Accordingly, the Husband's request for interim counsel fees is GRANTED to the extent of awarding him $25,000.00 without prejudice to future sums and subject to reallocation.

The Husband's request for fees as they relate to an expert are summarily denied as the Husband failed to provide an expert affirmation or provide within his moving papers an issue of fact sufficient to warrant the imposition of prospective expert fees. Accordingly, his request for expert fees is DENIED without prejudice for inadequate proof.

Domestic Relations Law section 234 empowers this Court to make an award, where appropriate, of exclusive use and occupancy of the marital residence. The rules for pendente lite exclusive use and occupancy of a marital residence are well established. "Exclusive occupancy of a marital residence by one party, pendente lite, is warranted : (1) when needed to protect the safety of persons or property; or (2) when the nonmovant spouse has voluntarily established an alternative residence and that spouse's return to the marital residence would cause domestic strife." (Kenner v. Kenner, 13 AD3d 52, 53 [1st Dept 2004]). Critically, the "standard for granting such relief should not be so inflexible as to exclude consideration of any other circumstances which would otherwise warrant judicial intervention" (Delli Venneri v. Delli Venneri, 120 AD2d 238 [1st Dept 1986]). The Husband's submissions make clear that there is certainly marital strife and conflict which would be escalated if the Wife returned to the marital residence. The Wife's Net Worth Statement demonstrates that she indeed has established alternative residence. Accordingly, based on the undisputed facts, the Husband is GRANTED pendente lite exclusive use and occupancy of the marital home.

To the extent the Wife needs access to certain undisputed property in the marital residence, access shall be arranged through counsel.

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