I. CPLR § 2219 [a] Statement

The following e-filed documents listed on NYSCEF (Motion No. 002) numbered 93-106, 108-109 were read on this motion.

This Decision and Order is rendered upon the Plaintiff's Order to Show Cause, filed June 11, 2025 (Motion Sequence No. 002), seeking the following post-judgment relief: (a) modification of residential custody of the parties' unemancipated child; (b) reappointment of the Attorney for the Child; (c) pendente lite child support pursuant to the CSSA; (d) modification of permanent child support and statutory add-on contributions; (e) an award of interim counsel fees in the amount of $10,000.00; and (f) such other and further relief as the Court deems just and proper.

The following papers were considered in connection with this motion:

• Plaintiff's Affidavit in Support;

• Attorney Affirmation in Support;

• Exhibits annexed thereto.

The motion was submitted for decision on June 26, 2025.

The parties were married on XXX XX, 2000, and were divorced pursuant to a Judgment of Divorce dated XXX XX, 2022, incorporating but not merging a Global Stipulation of Settlement (dated XXX XX, 2022) (NY St Cts Filing [NYSCEF] Doc No. 99) and a Custody and Parenting Time Stipulation (dated XXX XX, 2022) (NY St Cts Filing [NYSCEF] Doc No. 100). They are the parents of two children: VK (born XXX XX, 2003, now emancipated), and DCK (born XXX XX, 2008), who remains unemancipated at the age of 17.

The Custody Stipulation provided for joint legal and shared physical custody of DCK, with a structured weekly parenting schedule that allocated equal residential time. In reliance on that custodial balance, the parties contractually deviated from the CSSA in their financial stipulation, agreeing that each parent would bear child-related expenses during their custodial periods. Plaintiff also received $1,400 per month in child support for VK, who has since reached the age of emancipation.

However, a material and uncontested transformation in the child's living situation has since occurred. As of May 2024, DCK has resided almost exclusively with the Plaintiff, following a domestic dispute with the Defendant that culminated in the Defendant denying him unsupervised access to her home. The child's overnight visits with Defendant have diminished to two or three Mondays per month. Defendant has offered no credible dispute to this custodial reality.

The Plaintiff has unilaterally assumed the full burden of DCK's care—physical, emotional, medical, and educational. Defendant has contributed only sporadically and has refused to reimburse for many basic expenses. The child has consistently, clearly, and maturely expressed a desire to reside with Plaintiff, citing emotional strain and disparaging conduct by Defendant as key reasons for this preference.

Plaintiff now seeks to have the Judgment of Divorce amended to reflect this de facto custodial arrangement and to obtain financial relief commensurate with his increased parenting responsibilities.

a. Modification Standard

To prevail on a post-judgment application to modify custody, a movant must demonstrate:

(1) the existence of a substantial change in circumstances since entry of the prior order; and

(2) that the proposed modification would serve the best interests of the child. See Matter of Michael M. v Makiko M., 2025 NY Slip Op 02832 [2d Dept 2025]; Matter of Cannella v Anthony, 127 AD3d 745 [2d Dept 2015].

The Plaintiff has made both showings through detailed sworn submissions. The change in circumstances is manifest: the minor child has resided nearly exclusively with the Plaintiff for over a year, Defendant's parenting time has atrophied, and her participation in DCK's daily life has markedly diminished. Plaintiff's assumption of near-total caretaking responsibilities, uncontested on this record, represents a paradigmatic shift warranting judicial recognition.

As to best interests, the Court gives great weight to DCK's stated and demonstrated preference to reside with Plaintiff. At age 17, he possesses sufficient maturity to make a reasoned choice, particularly given the strained emotional tenor between himself and Defendant. The Plaintiff has shown that the child's emotional, academic, and physical welfare has thrived under his care. In contrast, Defendant's conduct, including emotionally charged communications and refusal to contribute financially to DCK's basic needs, has only deepened the rift.

Accordingly, the Court finds that modification of the residential custodial designation is warranted.

b. Child Support Modification

Pursuant to Domestic Relations Law § 236 [B] [7] [d], a support order may be modified upon a showing of a "substantial change in circumstances." The parties did not opt out of this statutory right.

Here, the prior support structure was explicitly premised on equal parenting time and the Plaintiff's receipt of support for the elder child. Neither of those premises remains operative. DCK now resides with Plaintiff nearly full-time. The existing financial arrangements are thus rendered fundamentally inequitable.

Plaintiff's 2024 income was $75,909.88. Defendant's most recent reported income was $140,291.40. Using the CSSA cap of $183,000 and a 17% rate for one unemancipated child, the combined child support obligation is $2,592.50 monthly. Apportioning responsibility pro rata, Defendant's share is $1,680.25 per month, exclusive of statutory add-ons.

The Plaintiff is entitled to both a modification of ongoing support and a retroactive award from the date of filing of this application.

c. Interim Counsel Fees in a Post-Judgment Atmosphere

Although traditionally framed as pendente lite relief, counsel fees may be awarded interim to post-judgment proceedings pursuant to Domestic Relations Law § 237 [a], which authorizes such awards "in any action or proceeding for a divorce or for the enforcement or modification of a judgment or order entered in such action."

The terminology "pendente lite" is imprecise here but not fatal. The essential inquiry is whether there exists a demonstrable disparity in resources, and whether the requesting party requires financial assistance to meaningfully litigate the matter. Both prongs are satisfied.

The Plaintiff has paid $6,500.00 to date and anticipates trial-phase costs requiring an additional $8,500.00 retainer. The Defendant, by contrast, has access to superior financial resources, which—absent judicial intervention—would result in an asymmetry of advocacy. The purpose of interim fee awards is precisely to preserve parity and discourage attritional litigation tactics. (see Prichep v Prichep, 52 AD3d 61 [2d Dept 2008]).

This is not merely equitable, it is a procedural necessity.

Accordingly, it is hereby:

ORDERED, that the Judgment of Divorce, dated December 2, 2022, is modified to designate DCK (D.O.B. XXX XX, 2008) as residing primarily with Plaintiff, who is hereby granted sole residential custody; and it is further

ORDERED, that Defendant shall have reasonable parental access, the parameters of which [*2]shall be addressed by stipulation or further application to the Court; and it is further

ORDERED, that Defendant shall pay to Plaintiff the amount of $1,680.25 per month as and for interim basic child support, retroactive to the date of filing of this motion, with payments to be made on the first of each month; and it is further

ORDERED, that Defendant shall contribute 65% of all unreimbursed medical, dental, vision, extracurricular, and educational expenses incurred on behalf of the child; and it is further

ORDERED, that Defendant shall pay to Geller Law PLLC, counsel for the Plaintiff, interim counsel fees in the amount of $10,000, within thirty (30) days of service of this Decision and Order with Notice of Entry; and it is further

This constitutes the Decision and Order of the Court.