Defendant-Wife moves by order to show cause for various forms of pendente lite relief including an award of temporary maintenance, interim counsel fees, renumeration for moving expenses, and a direction that Plaintiff-Wife not use marital assets to pay her attorneys' fees. Additionally, Defendant had initially sought relief related to the custody and visitation of the parties' companion animal; however, prior to this motion's oral argument Defendant withdrew that portion of her application. Likewise, Defendant had withdrawn her request as it relates to moving expenses but argues in reply that she is now "renewing [her] request" based upon Plaintiff "writing a full page about moving fees in her [opposition affirmation]."

Plaintiff opposes and argues that much of Defendant's expenses as they relate to moving were not necessary expenses and that Defendant should have income imputed to her in calculating maintenance based upon her past earnings. Plaintiff further argues that the request for moving expenses is moot based upon Defendant withdrawing the claim during the pendency of this motion sequence.

During the pendency of this motion sequence this Court held a preliminary conference and issued two interim orders related to issues raised in this sequence. As is relevant herein, the Court directed that pending determination of this application Plaintiff was to pay Defendant $3,000.00 as and for interim maintenance and that neither party shall remove any funds from the parties' joint accounts absent agreement or court order.

The Court heard oral arguments on this fully submitted motion sequence.

I. Temporary Maintenance

In determining an award of temporary maintenance, the Court seeks to "ensure that a needy spouse is provided with funds for his or her support and reasonable needs pending trial. It is not to determine the correct ultimate distribution." (Jin C. v Juliana L., 137 AD3d 1063, 1064 [2d Dept 2016]; see e.g., Albanese v Albanese, 234 AD2d 489, 490 [2d Dept 1996]). Statute, discretion, and the specific circumstances of the family before the court guide this determination. (DRL § 236[B][5-a], et seq.).

Under controlling law, the incomes for these maintenance calculations are "capped" at $228,000.00, as of March 1, 2024. However, even where, as here, the payor's income exceeds the income cap, the Court still must first determine the guideline maintenance amount up to the cap. (DRL § 236[B][5-a][d][1]).

The first step to calculating temporary spousal support is to ascertain each parties' income. The parties' joint 2023 income tax return shows an income of $249,896.00. Plaintiff's 2023 W-2 demonstrates an income of $246,956.30 in income. Defendant produced a wage statement demonstrating Plaintiff's 2024 year-to-date earnings, as of September 27, 2024, of $296,425.48. There is no genuine dispute that these figures are representative of Plaintiff's income; nor can there be under these circumstances. (See e.g., Mahoney-Bunttzman v Buntzman, 12 NY3d 415, 422 [2009]).

On the other hand, Defendant asserts in her Net Worth Statement that she has an income of $34,461.00. Defendant states her limited income is due to the fact that she is pursuing her Master of Fine Arts Degree at [REDACTED] University (MFA), thus limiting her ability to work. Notwithstanding, she does admit and provides substantial documentary proof to show that she is in fact earning income while balancing her demanding student schedule. On this issue of Defendant's income, Plaintiff argues this court should impute an income of "at least [*2]$100,000.00." Plaintiff argues this income should be used because: (1) this was the sum reported by Defendant to obtain a lease; and (2) her past earnings.

As to the issue of the income reported on Defendant's lease application, Plaintiff's reliance on the seminal holding in Mahoney-Buntzman is unavailing. In the first instance, Mahoney-Buntzman held that a party could not take a position in litigation inconsistent with representations made on their Federal Income Tax Returns which are declared under penalty of perjury. (Id.). This holding does not apply to mixed questions of law and fact. (See Spalter v Spalter, 2025 NY Slip Op. 00178, 2025 NY App. Div. LEXIS 147, at *4 [1st Dept January 9, 2025][Holding Mahoney-Buntzman's holding does not apply to "mixed questions of law and fact."]). Here, the Court is being asked to impute income and thus determine a "mixed question of law and fact." Further, a material divergence between the case at bar and the facts in Mahoney-Buntzman is that there is no tax return with this assertion — merely a lease application. This Court refuses to stretch the Court of Appeals holding, which has been refined to be less extensive than Plaintiff argues by the First Department (see Spalter, supra at *4), to a lease application.

The resolution of this issue turns on the fundamental principle in New York that "marriage is an economic partnership." (See Klauer v Abeliovich, 149 AD3d 617, 621 [1st Dept 2017]). Here, the parties made a marital decision that Defendant would pursue a degree as a student. That the parties thereafter filed for divorce does not negate that the fact that the parties made a decision as marital economic partners to reduce Defendant's income so that she could earn her MFA. The fact that a divorce action has been filed does not affect the fact that this partnership decision was made and relied upon by Defendant in pursuing her degree which necessarily reduced her income capacity. Indeed, Defendant's reply papers thoroughly demonstrate that despite her student status, Defendant does make active efforts to continue to earn income as a student.

In sum, this Court rejects Plaintiff's argument and finds that Plaintiff cannot now walk-back a marital decision made prior to the commencement of this action for the sole purpose of benefiting in this action and prejudicing Defendant's right to temporary support. Accordingly, the Court will use the reported $34,461.00 as Defendant's income for the purposes of calculating temporary spousal support. Contrastingly, this Court does find it prudent and an appropriate exercise of discretion to look to Plaintiff's year-to-date earnings and impute an income of $300,000.00 to Plaintiff. (Weitzner v Weitzner, 120 AD3d 1406, 1407 [2d Dept 2014]; Wallach v Wallach, 37 AD3d 707, 708 [2d Dept 2007]).

Under the DRL's rubric, the guideline annual amount for temporary maintenance up to the cap is $36,984.75.00 or $3,082.06 per month. Once the guideline amount has been determined, the court has the discretion to award maintenance above the cap — with reference to the factors outlined in DRL § 236(B)(5-a)(h). (DRL § 236[B][5-a][d][2]; see Warshaw v Warshaw, 173 AD3d 582, 583-584 [1st Dept 2019]).

Defendant's Net Worth Statement asserts monthly expenses in the amount of $10,144.00. The Court notes that some of the expenses reported by Defendant are not reasonable expenses for the purposes of spousal support. Specifically, the reported monthly recreational expenses, various miscellaneous expenses, automobile expenses (as Defendant now resides in New York City and goes to school there), and housing. As it relates to housing, it is undisputed that Defendant left the marital residence and obtained her own separate apartment. Equally relevant is that Defendant reports assets totaling $864,337.00. While not all of these assets are purely [*3]liquid, Defendant's asset portfolio reveals that she can meet her monthly expenses during the pendency of this matter if she uses her assets. Based on these facts, the Court finds the presumptive award under the statute to be appropriate given the parties incomes and expenses. Accordingly, the Court awards Defendant $3,082.06 as and for temporary spousal support. This sum shall be paid exclusively from Plaintiff's separate property and/or post-commencement earnings.

This award does not include a separate direction that Plaintiff pay Defendant's current rent as that would constitute impermissible double dipping as "[t]he formula to determine temporary spousal maintenance that is outlined in Domestic Relations Law § 236(B)(5-a)(c) is intended to cover all of a payee spouse's basic living expenses, including housing costs [. . .]." (Capozzoli v Capozolli, 187 AD3d 834, 835 [2d Dept 2020]; see also, Khaira v Khaira, 93 AD3d 194, 200 [1st Dept 2012]["[W]e consider it reasonable and logical to view the formula adopted by the new maintenance provision as covering all the spouse's basic living expenses, including housing costs [. . .]."]). Notwithstanding, there is a marital residence, which is a substantial marital asset, that must be paid for to avoid what would be clear marital waste. Accordingly, the Plaintiff is directed to cover the carrying costs on the marital residence pendente lite, subject to reallocation at trial.

This award is made retroactive to the date of filing of this pendente lite application. (See Wolinsky v Berkowitz, 227 AD3d 433, 434 [1st Dept 2024]). Defendant moved on or about August 26, 2024. The Court's interim maintenance order was issued on or about October 10, 2024. For the months of August, September and October of 2024, Defendant is entitled to a presumptive arrearage of $9,246.18^[FN1] and for the months of November and December of 2024 and January of 2025, demonstrate a collective additional presumptive arrearage of $246.18. Accordingly, Defendant is awarded $9,492.36 in presumptive arrears, with such sum to be reduced by any voluntary payments advanced by Plaintiff, including if any payment was tendered in October of 2024 pursuant to the October Interim Order. This sum shall be paid exclusively from Plaintiff's separate property and/or post-commencement earnings.

II. Interim Counsel Fees

"There is a rebuttable presumption that interim counsel fees shall be awarded to the less monied spouse (see Domestic Relations Law § 237 [a]), and courts 'should normally exercise their discretion to grant such a request made by the non-monied spouse, in the absence of good cause' to deny the request." (Pezzollo v Pezzollo, 173 AD3d 918, 919 [2d Dept 2019] citing, Prichep v Prichep, 52 AD3d 61, 62 [2d Dept 2008]). Indeed, failing to award fees here would place Defendant on an unequal playing field given Plaintiff's control over the marital finances, Planitff's historical role as a primary breadwinner, and Defendant's student status. (See e.g., Carlin v Carlin, 120 AD3d 734, 734 [2d Dept 2014]). Here, there is no good cause, nor has Plaintiff presented any, to deny the fee application.

Defendant presents a retainer agreement evincing an initial retainer in the amount of $7,500.00. She further presents legal invoices demonstrating fees incurred that reduced the retainer amount to $235.50. Defendant's counsel in her affirmation further states that as of the [*4]date of filing the Defendant's retainer was depleted. Defendant's request is for both interim and prospective fees in the total amount of $15,000.00.

Upon review of both parties' submissions, the issues in the case, the relatively low retainer and billing rates Defendant's Counsel incurs and the caliber of counsel, the sum of $15,000.00 as and for interim counsel fees is surely reasonable. Indeed, this amount represents the repayment of Defendant's original retainer and a replenishment of the retainer amount. The Court finds that this sum as an award is reasonable and appropriate under these circumstances. Accordingly, Defendant is awarded $15,000.00 in interim counsel fees, subject to reallocation and without prejudice to her ability to seek further fees as this litigation progresses. This sum shall be paid exclusively from Plaintiff's separate property and/or post-commencement earnings.

Related to Defendant's request for counsel fees is her request this Court direct Plaintiff to cease using marital funds to pay Plaintiff's counsel fees because this in effect means Defendant is paying a portion of Plaintiff's counsel fees. The Legislature was clear in enacting DRL § 237 that it is the monied spouse not the non-monied spouse that is presumptively liable for the reasonable attorneys' fees of the non-monied spouse and Plaintiff's use of marital assets to pay her fees is both inappropriate under the circumstances as there is no depletion of separate funds that would necessitate such a dilution of the marital estate and contrary to the legislative intent of DRL § 237. Accordingly, Plaintiff is hereby enjoined from using marital assets to pay her counsel fees moving forward absent court order or agreement between the parties. Further, this direction is in line with the Court's interim order as it relates to the unilateral use of marital accounts which is hereby CONTINUED. To the extent that she has already done so, renumeration for those sums is referred to trial.

III. Mooted Relief

Defendant's requests as they relate to moving costs and the parties' companion animal are moot as both were withdrawn by Defendant. Defendant's argument in reply that she is "renewing" her request for moving costs based upon Plaintiff's discussion of the issue in her papers is unavailing. Plaintiff's opposition was written clearly in reliance on Defendant's withdrawal of her request for moving expenses. To allow the argument to be renewed when Plaintiff has no opportunity to respond would be both inequitable and prejudicial. Accordingly, Defendant's requests as they relate to the parties' companion pet and moving costs are DENIED WITH PREJUDICE as moot and otherwise procedurally defective.

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