Plaintiff Husband moves by order to show cause seeking, inter alia, a downward modification of unallocated support of $14,000.00 set in the Parties Stipulation (the "Stipulation") dated December 22, 2022, to $6,264.00 for pendente lite child support. Defendant Wife cross moves for pendente lite child support in the amount of $10,000.00; reimbursement of [*2]$11,803.03 ^[FN1] in child support add-on arrears and a money judgement plus statutory interest if it is not paid in 30 days; a total of $200,000.00 for pendente lite counsel fees, including prospective fees; and $75,000.00 for pendente lite expert fees including prospective fees.

In December 2022, the parties entered into a "Pendente Lite Stipulation" in which they agreed that Plaintiff would pay Defendant $14,000 in unallocated monthly support as well as 90% of the child's add-on expenses. Both Parties acknowledge that support would be renegotiated as of June 30, 2024, according to the Stipulation. Further, both parties agree that maintenance would end by June 30, 2024, and only child support was to be recalculated. Plaintiff is seeking a pendente lite child support amount of $6,264.00 per month while Defendant is seeking a pendente lite child support amount of $10,000.00 per month.

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, as what is set forth in the record, 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 earning approximately $200,000.00 during the marriage. From the perspective of the Plaintiff's income, the issue of his income concerns to what extent this Court considers his fluctuating income which has been shown to vastly vary from approximately $600,000.00 to $2,500,000.00 in any given year.

As to the Defendant's income, the Plaintiff has sufficiently shown that the Defendant has an earning potential and can re-enter the workforce; it is just unclear as to when. Defendant admits, that throughout the marriage she maintained an income of approximately $200,000. According to Defendant's papers, provided tax returns, and Statement of Net Worth, previously in 2023 Defendant was earning a gross income of approximately $193,949.72; in 2024 Defendant enjoyed continued employment until she was let go on July 26, 2024, where she received a severance package of approximately $68,129.16 before taxes. Further, she has made [*3]diligent efforts to secure new employment. Notably, Defendant states that on September 20,2024 she received a job offer from a notable company for a position as a Senior Accountant Executive, for a salary of $177,000.00 and a sign on bonus of $14,500.00 (a total of $191,500.00). This sign on bonus 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."]). Thus, considering the Defendants prior employment and her most recent job offer, the Court does find it appropriate to impute $190,000.00 per year to the Defendant at this time.

Regarding the Plaintiff's income, his provided tax returns and Statement of Net Worth demonstrate that in 2021 he earned a gross income of approximately $743,363.00; in 2022 he earned a gross income of approximately $2,627,463.00; in 2023 he earned a gross income of approximately $559,417.00; and in 2024 he earned at least $1,200,000.00 ^[FN2] . Considering the volatility of the Husband's income, the non-consecutive nature of his inflated 2022 income, his extensive assets, and their liquidity, the Court finds it appropriate to impute income to the Husband in the amount of $1,600,000.00 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 $1,663,132.96. The Plaintiff's income represents 89.75% of the CPI and the Defendant's income represents 10.25% 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 $2,592.50 per month, with the Plaintiff being obligated to pay $2,326.81 per month. The Parties both agree that this result is neither just nor appropriate for this family based upon, inter alia, the marital status quo, the income held by the Plaintiff, the child's educational costs, the age and health of the parents, the status quo expenses of the Child, and the young age of the Child. Accordingly, the Court finds justice requires deviation from the guideline amount.

Based on the reasons above, the Court finds an adjusted cap of $600,000.00 to be more appropriate (the adjusted cap) for consideration. Under the adjusted cap, the Plaintiff's basic child support obligation would be $7,628.88 per month. The Court further deviates slightly upward based upon the specific fixed expenses of the young child including Defendant's expense of $7,000.00 per month in rent and other costs such as food and the utilities on the home, while also recognizing that Defendant has the ability to also contribute financially. Accordingly, the Plaintiff's request for a downward modification of pendente lite child support is GRANTED to the extent that the Plaintiff is directed to pay the Defendant a sum of $8,200.00 per month as and for temporary child support, subject to recalculation after trial. Defendant's request for a pendente lite order of child support in the amount of $10,000.00 is DENIED.

As to add-ons, which include unreimbursed medical expenses, child care, tuition, camp, and extracurricular activities, the Court directs, on consent of the parties that the Plaintiff is to [*4]pay 90% and Defendant is to pay 10% of the Child's add-ons based on the marital status quo and the Plaintiff's immense wealth compared to the Defendant's financial circumstances. This pendente lite award is made retroactive to the date of filing. (DRL § 240; Wolinsky v Berkwotz, 226 AD3d 433, 434 [1st Dept 2024]).

Defendant wife cross moves for add-on arrears in the amount of, $11,803.03 for childcare, activities and medical expenses.

It is this Court's belief that the production of Zelle payments to an agreed upon nanny is acceptable proof of a bill or invoice for the purposes of childcare. Defendant does set forth proof that these Zelle transactions were eventually sent to Plaintiff's Counsel, along with the handmade expense spreadsheet created by the Defendant. While the Court does note that the Stipulation does not dictate a timeframe in which the invoices for add-ons are to be produced, the Court does find that the Plaintiff was eventually given proper notice of bills and invoices for the childcare and add on expenses in question.

However, the current issue of whether Plaintiff is obligated to pay the specific childcare amounts that may or may not have been outside the scope of the Stipulation is also not further explained and would require a hearing. Accordingly, the issue of arrears for add-on expenses in the amount of $11,803.03 is referred to trial.

In matrimonial actions, the Court has discretion to direct one party to pay counsel fees for the opposing party (Domestic Relations Law ["DRL"] § 237). DRL § 237 further creates a rebuttable presumption that counsel fees shall be awarded to the non-monied spouse. This presumption reflects the strong policy concern of ensuring "that marital litigation is shaped not by the power of the bankroll but by the power of the evidence" (Charpie v Charpie, 271 AD2d 169, 170 [1st Dept 2000]).

It is therefore especially important to award counsel fees for the non-monied spouse when there is a substantial discrepancy between the incomes of the parties (id. at 171). However, in addition to looking at the incomes of the parties, "in exercising its discretionary power to award counsel fees, a 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]).

Regarding Defendant's request for an award of counsel fees, her attorney explains all the work she has done on the case and note the additional work regarding financial issues that has yet to be done. Defendant provides invoices from counsel and her attorney's affirmation. The invoices provided are heavily redacted and upon review the Court is unable to determine what specific services are being billed for. Normally, the Court would request unredacted invoices for in-camera review, but the Court will take into consideration that both Parties agree to the approximate amount that has been billed thus far by Defendant's counsel and the approximate outstanding balance. In support of the request, Defendant also focuses on the Plaintiff's income, the amount of fees Plaintiff has paid to his attorneys, and she blames many of her the fees incurred on Plaintiff.

Regarding Defendant's request for expert fees, she provides an affidavit from her financial expert from KLG, explaining and outlining the work that has been done to date, the work that still needs to be done, the current outstanding balance owed of $4,349.83 and the need of an additionally $75,000.00. Defendant retained KLG to perform forensic accounting services [*5]and review the Parties spending. Defendant claims the Plaintiff has been spending far beyond his reported income in certain years. Plaintiff denies these claims.

This Court has not yet issued an award of Counsel fees as the Parties have been able to stipulate to such throughout the pendency of the action. During the pendency of this action, Plaintiff had advanced $150,000.00, from marital assets to Defendant for counsel and expert fees, and $25,000.00, from his post-commencement income to Defendant for counsel fees. It is undisputed that the Plaintiff is the monied spouse. However, the Court is now concerned that it is Defendant's litigation tactics, positions, and other behavior that is unnecessarily increasing both parties counsel fees and prolonging the action.

It is notable that the issues of custody and parenting time have been resolved, as has the issue of maintenance. This is a short-term marriage and few issues remain to address. Regarding child support, the parties were directed to submit a stipulation on the issue of child support and add-ons as it was the Court's understanding the parties had agreed to an amount for a final child support award. However, no such stipulation was ever provided to the Court.

In consideration of all the circumstances of the case, it is the view of the Court that it is just and appropriate to award $75,000 Defendant in counsel fees for past services and an additional $25,000 for prospective counsel fees which will hopefully be used to achieve resolution of this matter. In addition, the Court awards $4,349.83 in expert fees without prejudice to future applications for additional expert fees.

Accordingly, it is hereby;

ORDERED, Plaintiff shall pay $8,200, as and for child support, directly to Defendant on the 1st of every month, retroactive to the date of this application; and it is further

ORDERED, on consent, Plaintiff shall pay 90% and Defendant shall pay 10% of the Child's add-ons; and it is further

ORDERED, the issue of add-on arrears is referred to trial; and it is further

ORDERED, Plaintiff shall pay $50,000 directly to Defendant's counsel within 30 days of this order, and the remaining $50,000.00 shall be paid within 60 days of this order; and it is further

ORDERED, Plaintiff shall pay $4,349.83 directly to Defendant for expert fees within 30 days of this order.

This constitutes the Decision and Order of the Court.