Statement Pursuant to CPLR § 2219

The following e-filed documents listed on NYSCEF (Motion #003) numbered 81-90 and (Motion #004) numbered 95-103 were read on this motion. Oral argument was heard by the court on June 9, 2025. This is a final Decision and Order on Motion Sequence No. 003 and Motion Sequence No. 004.

This matrimonial action was commenced on XX XX, 2024. The parties were married on XX XX, 2006, and there are two unemancipated children of the marriage to wit: BK (born XX XX, 2007) and AK (born XX XX, 2009).

By Short Form Order dated November 12, 2024, (NY St Cts Filing [NYSCEF] Doc No. 83) entered on consent of the parties, Defendant, LK, was directed to pay Plaintiff, CK, spousal maintenance in the amount of $934.00 per month and child support in the amount of $541.70 per month for AK, who was then residing with Plaintiff. BK remained in the physical custody of Defendant.

Defendant now moves by Order to Show Cause, asserting a substantial change in circumstances warranting revision of the current custodial and financial arrangements. Specifically, Defendant seeks temporary custody of both minor children; an award of child support from Plaintiff consistent with the Child Support Standards Act ("CSSA"); exclusive use and occupancy of the marital residence located at XXX XX Avenue, Staten Island, NY; and an Order compelling Plaintiff to bring current all outstanding financial obligations related to the marital residence. Defendant further requests reimbursement of specific discretionary expenses.

In support of his application, Defendant alleges that Plaintiff has failed to provide a stable and supportive environment for AK. Defendant appends documentary evidence demonstrating AK's chronic absenteeism (approximately 150 late arrivals and absences combined) (NY St Cts Filing [NYSCEF] Doc Nos. 84; 98) and an alarming number of missing assignments — nearly 100 (NY St Cts Filing [NYSCEF] Doc No. 86 at ¶8)— across various academic subjects, resulting in failing grades such as:

• Italian 3: 34.4% (14 missing assignments)

• Earth & Space 1: 25.7% (31 missing assignments)

• English: 32% (20 missing assignments)

• And similarly deficient performance in other courses. (see id at ¶9)

Defendant further asserts that AK failed to attend a mandatory Saturday course and that Plaintiff failed to intervene or take corrective action despite prior judicial admonishment.

Additionally, Defendant contends that Plaintiff has mismanaged the finances of the marital residence. Specifically, Defendant submits that the mortgage is now in arrears by approximately $27,000, and utility arrears include:

• $1,935.68 owed to Con Edison,

• $562.33 owed to National Grid,

• $1,141.61 owed to DEP, and

• approximately $500 in Verizon charges carried on Defendant's credit card. (NY St Cts Filing [NYSCEF] Doc No. 102)

Defendant also requests reimbursement for approximately $10,000 expended on BK's school trips, 50% of which he contends Plaintiff is obligated to contribute under equitable [*2]principles.

In opposition and by cross-motion, Plaintiff seeks an Order awarding her temporary custody of AK and an interim counsel fee award of $25,000. Plaintiff's opposition is grounded upon allegations that Defendant has engaged in conduct she characterizes as abusive and controlling since temporary custody was transferred pursuant to this Court's May 8, 2025 Short Form Order.

Plaintiff asserts, inter alia, that since May 12, 2025, AK has reported feeling unsafe in Defendant's home due to behaviors such as:

• Defendant allegedly videotaping the yard rather than interacting with AK,

• Removing AK's personal items, including her camera and blankets,

• Allegedly surveilling her through a bedroom window and while she slept,

• Locking AK out of the residence, and,

• Failing to maintain adequate food in the household. (NY St Cts Filing [NYSCEF] Doc No. 96)

Plaintiff further alleges that Defendant attempted to run her over with a vehicle on May 13, 2025, for which a police report was purportedly filed and an arrest warrant allegedly issued. Finally, Plaintiff requests interim counsel fees based upon an asserted disparity in financial resources between the parties and the increasing burdens of this litigation.

Defendant, in reply, vigorously denies Plaintiff's allegations, asserting that they are retaliatory and unsupported by credible evidence. Defendant reaffirms his commitment to addressing AK's educational needs and asserts that Plaintiff's ongoing financial neglect threatens the preservation of the marital estate.

The overarching principle in custody determinations remains the best interests of the child. (see Eschbach v. Eschbach, 56 NY2d 167 [1982]; Friederwitzer v. Friederwitzer, 55 NY2d 89 [1982]; O'Mahoney v O'Mahoney, 206 AD3d 819 [2d Dept 2022]; Matter of Williamson v Williamson, 182 AD3d 604 [2d Dept 2020]) In evaluating this standard, the Court must assess the totality of the circumstances, including: the fitness of each parent; the stability and quality of the respective home environments; the demonstrated ability to meet the child's emotional and intellectual needs; and the past performance of each parent in fulfilling their custodial obligations. (see Matter of Tabitha T. S. M. (Tracee L. M.—Candace E.), 159 AD3d 703 [2d Dept 2018]; Matter of Grigoli v Grigoli, 29 AD3d 792 [2d Dept 2006]).

Defendant has provided compelling and largely uncontroverted evidence that AK's academic welfare deteriorated significantly while in Plaintiff's custody. The Court is particularly troubled by the magnitude of absenteeism, missing assignments, and failing grades presented in the record. Plaintiff does not dispute these facts nor offer a persuasive explanation for AK's academic decline. Nor does Plaintiff articulate a concrete plan to remedy these deficiencies should custody be returned to her.

Conversely, Defendant has demonstrated proactive engagement with AK's school, including outreach to school officials to devise a remedial educational plan. These efforts are entitled to significant weight in the Court's assessment of the best interests of the child.

While Plaintiff's allegations of post-transfer misconduct by Defendant are grave, they are unsubstantiated by independent evidence. No corroborating police report is annexed regarding the surveillance allegations; nor is there an affidavit from AK herself. The only documented [*3]event — Defendant's May 13, 2025 arrest — remains pending adjudication in another forum and cannot, at this stage, alone justify disruption of the present custodial arrangement.

In balancing the record before it, the Court finds that AK's demonstrable educational needs weigh decisively in favor of maintaining temporary custody with Defendant at this time.

The May 8, 2025 Short Form Order granted Defendant exclusive use and occupancy of the marital residence. Plaintiff has provided no evidentiary basis warranting reversal of this directive. Given that both children are now in Defendant's custody, continued exclusive occupancy serves their stability and welfare.

With both minor children now residing with Defendant, Plaintiff is legally obligated to contribute to their support pursuant to the CSSA. Defendant's request for child support in the amount of $974 per month, based upon the parties' stated incomes ($101,000 for Defendant; $30,000 for Plaintiff), is consistent with statutory guidelines and unchallenged by Plaintiff on its merits. Defendant's request for retroactivity to the date of filing (May 2, 2025) is proper and shall be granted.

The preservation of the marital estate is a fundamental obligation of both parties during matrimonial litigation. Defendant has provided undisputed evidence that Plaintiff is in substantial arrears on the mortgage and utilities of the marital residence. Plaintiff offers no substantive rebuttal to these arrears. Accordingly, Plaintiff is directed to bring all such arrears current within thirty (30) days of service of this Decision and Order with Notice of Entry.

Defendant requests reimbursement for certain discretionary expenses, including Verizon bills and approximately $10,000 in school trip costs for BK. While these claims may have merit, the Court finds that resolution of such requests requires a fully developed evidentiary record and an opportunity for opposition consistent with procedural due process. Accordingly, Defendant's request for reimbursement of such discretionary expenses is hereby RESERVED for determination at trial, pending evidentiary proof of payment and an opportunity for Plaintiff to respond at that time.

An award of counsel fees under DRL § 237 [a] is intended to promote parity between the parties in their ability to litigate. However, compliance with procedural requirements — including 22 NYCRR 1400.2, timely billing, and submission of invoices — is essential. (Wagman v. Wagman, 8 AD3d 263 [2d Dept. 2004]; Barson v. Barson, 32 AD3d 872 [2d Dept. 2006].)

Here, Plaintiff has failed to submit any invoices, time records, or a statement of net worth. The absence of such foundational documentation precludes this Court from performing the requisite reasonableness analysis. Accordingly, Plaintiff's application for interim counsel fees is DENIED without prejudice to renewal upon proper evidentiary submission.

Accordingly, it is hereby:

ORDERED, that Defendant's motion is GRANTED as follows:

1. Defendant is awarded temporary custody of both minor children, BK and AK, pending further order of this Court;

2. Defendant is awarded exclusive use and occupancy of the marital residence located at XXX XX Avenue, Staten Island, NY 10314;

3. Plaintiff is directed to bring current all arrears on the mortgage and utilities of the marital residence within thirty (30) days of service of this Decision and Order with Notice of Entry;

4. Plaintiff is directed to pay to Defendant child support in the amount of $974 per month, retroactive to May 2, 2025, subject to recalculation upon further financial disclosures;

ORDERED, that Defendant's request for reimbursement of specific discretionary expenses, including but not limited to Verizon bills and school trip costs, is RESERVED for determination at trial, pending the presentation of evidentiary proof of payment and an opportunity for Plaintiff to oppose;

ORDERED, that Plaintiff's cross-motion for temporary custody of AK is DENIED;

ORDERED, that Plaintiff's cross-motion for interim counsel fees is DENIED without prejudice to renewal upon proper submission.

This constitutes the Decision and Order of this Court.