Opinion
Index No. 55430/2020
11-03-2022
AW, Plaintiff, v. PW, Defendant.
Counsel for the Plaintiff, AW: James R. Lambert, Esq. THE LAW FIRM OF JAMES R. LAMBERT Counsel for Defendant, PW: Erin Kathleen Colgan, Esq.
Unpublished Opinion
Counsel for the Plaintiff, AW:
James R. Lambert, Esq.
THE LAW FIRM OF JAMES R. LAMBERT
Counsel for Defendant, PW:
Erin Kathleen Colgan, Esq.
Ronald Castorina Jr., J.
The following e-filed documents listed on NYSCEF (Motion #004) numbered 69-78, and 81-98 were read on this motion.
ORDERED, that Defendant is to pay monthly maintenance to Plaintiff commencing in November 2022 in the monthly sum of $172.86 [One Hundred Seventy-Two Dollars and Eighty-Six Cents], pendente lite, subject to reallocation at trial.
ORDERED, that Defendant is to pay retroactive maintenance to Plaintiff for the months of July 2022, August 2022, September 2022, and October 2022 in the amount of $691.44 [Six Hundred Ninety-One Dollars and Forty-Four Cents], pendente lite, subject to reallocation at trial.
ORDERED, that Defendant is to pay child support to the Plaintiff commencing in November 2022 in the monthly sum of $3,559.35 [Three Thousand Five Hundred and Fifty-Nine and Thirty-Five Cents], pendente lite, subject to reallocation at trial.
ORDERED, that Defendant is to pay retroactive child support for the months of July 2022, August 2022, September 2022, and October 2022 in the amount of $14,237.40 [Fourteen Thousand Two Hundred Thirty-Seven Dollars and Forty Cents], pendente lite, subject to reallocation at trial.
ORDERED, that the Clerk of the Court shall enter judgment accordingly.
Memorandum Decision
Statement of Facts
Plaintiff and Defendant were married on XX XX, 1999. There are two children of the marriage, to wit: AA, born XX XX, 2004, and PGW, born AA XX, 2006, both of whom are unemancipated. Plaintiff commenced this action for divorce on or about December 3, 2020.
On July 7, 2022, Plaintiff filed Motion Sequence #004 by Notice of Motion (a) seeking monthly spousal maintenance retroactive to the date of the filing of this motion pursuant to DRL § 236 [B], pendente lite, (b) monthly child support retroactive to the date of the filing of this motion pursuant to the CSSA, Domestic Relations Law §240, pendente lite, (c) Defendant to be directed to pay his pro rata share for child, AA's, college room and board and expenses, (d) Defendant to be directed to return the child's, AA's, Social Security Disability checks to the Plaintiff, (e) Defendant to be directed to return the child's, XX's, personal belongings, and (f) and any other, further, and different relief the Court deems proper.
On July 28, 2022, Defendant filed opposition to Motion Sequence #004. On August 29, 2022, Plaintiff filed reply. The Court conferenced the Motion Sequence #004 on August 31, 2022. The Parties were able to reach consensus on Motion Sequence #004 prongs (c) through (f) and a short form Order was issued resolving those prongs of the motion. The Court also heard oral arguments regarding Motion Sequence #004 prongs (a) and (b) on August 31, 2022. Parties were provided with additional time to resolve these prongs of the motion, Parties have been unable to reach consensus on pendente lite maintenance and pendente lite child support. This is a Decision and Order on the remaining prongs of Motion Sequence #004.
Discussion
I. Plaintiff's Income
"Income shall mean income as defined in the child support standards act and codified in section two hundred forty of this article and section four hundred thirteen of the family court act[.]" (see Domestic Relations Law § 236 [B] [5-a] [b] [4]).
Domestic Relations Law § 240 [1-b] [b] [5] provides as follows:
(5) "Income" shall mean, but shall not be limited to, the sum of the amountsdetermined by the application of clauses (i), (ii), (iii), (iv), (v) and (vi) of this subparagraphreduced by the amount determined by the application of clause (vii) of this subparagraph:
(i) gross (total) income as should have been or should be reported in the most recentfederal income tax return. If an individual files his/her federal income tax return as amarried person filing jointly, such person shall be required to prepare a form, sworn tounder penalty of law, disclosing his/her gross income individually;
(ii) to the extent not already included in gross income in clause (i) of thissubparagraph, investment income reduced by sums expended in connection with suchinvestment;
(iii) to the extent not already included in gross income in clauses (i) and (ii) of thissubparagraph, the amount of income or compensation voluntarily deferred and incomereceived, if any, from the following sources:
(A) workers' compensation, (B) disability benefits, (C) unemployment insurance benefits, (D) social security benefits, (E) veterans benefits, (F) pensions and retirement benefits, (G) fellowships and stipends, (H) annuity payments, and
(I) alimony or maintenance actually paid or to be paid to a spouse who is a party to the instant action pursuant to an existing court order or contained in the order to be entered by the court, or pursuant to a validly executed written agreement, in which event the order or agreement shall provide for a specific adjustment, in accordance with this subdivision, in the amount of child support payable upon the termination of alimony or maintenance to such spouse; provided, however, that the specific adjustment in the amount of child support is without prejudice to either party's right to seek a modification in accordance with subparagraph two of paragraph b of subdivision nine of part B of section two hundred thirty-six of this article. In an action or proceeding to modify an order of child support, including an order Incorporating without merging an agreement, issued prior to the effective date of this subclause, the provisions of this subclause shall not, by themselves, constitute a substantial change of circumstances pursuant to paragraph b of subdivision nine of part B of section two hundred thirty-six of this article.
"In determining parental income under the CSSA, the court must begin with the parent's 'gross (total) income as should have been or should be reported in the most recent federal income tax return'" (see Sinnott v Sinnott, 194 A.D.3d 868 [2d Dept 2021] citing Domestic Relations Law § 240 [1-b] [b] [5] [i]; Holterman v Holterman, 3 N.Y.3d 1 [2004]; Matter of Peddycoart v MacKay, 145 A.D.3d 1081 [2d Dept 2016]) "and then to the extent not already included in gross income, the amount of income or compensation voluntarily deferred and income received from certain specified sources, including pensions and retirement benefits[.]" (see id; citing Domestic Relations Law § 240 [1-b] [b] [5] [iii] [F]; Holterman v Holterman, 3 N.Y.3d 1 [2004]; Ballard v Davis, 259 A.D.2d 881 [3d Dept 1999]).
Domestic Relations Law § 240 [1-b] [b] [5] [vii] provides for the following deductions for income:
(vii) the following shall be deducted from income prior to applying the provisions of paragraph (c) of this subdivision:
(A) unreimbursed employee business expenses except to the extent said expensesreduce personal expenditures, (B) alimony or maintenance actually paid to a spouse not a party to the instantaction pursuant to court order or validly executed written agreement, (C) alimony or maintenance actually paid or to be paid to a spouse who is a party to the instant action pursuant to an existing court order or contained in the order to be entered by the court, or pursuant to a validly executed written agreement, in which event the order or agreement shall provide for a specific adjustment, in accordance with this subdivision, in the amount of child support payable upon the termination of alimony or maintenance to such spouse; provided, however, that the specific adjustment in the amount of child support is without prejudice to either party's right to seek a modification in accordance with subparagraph two of paragraph b of subdivision nine of part B of section two hundred thirty-six of this article. In an action or proceeding to modify an order of child support, including an order incorporating without merging an agreement, issued prior to the effective date of this subclause, the provisions of this subclause shall not, by themselves, constitute a substantial change of circumstances pursuant to paragraph b of subdivision nine of part B of section two hundred thirty-six of this article.
(D) child support actually paid pursuant to court order or written agreement on behalf of any child for whom the parent has a legal duty of support and who is not subject to the instant action, (E) public assistance, (F) supplemental security income, (G) New York city or Yonkers income or earnings taxes actually paid, and
(H) federal insurance contributions act (FICA) taxes actually paid.
a. Plaintiff Earned Income
Plaintiff's taxable income for 2021 was $89,805.41 as reported on her W-2. (NY St Cts Filing [NYSCEF] Doc No. 72). Box 12A on Plaintiff's W-2 indicates the Plaintiff made the maximum contribution permittable by the Internal Revenue Service to her agency's authorized elective salary deferral plan in the amount of $19,500.00. (see id; United States Internal Revenue Service, https://www.irs.gov/retirement-plans/plan-participant-employee/retirement-topics-401k-and-profit-sharing-plan-contribution-limits [last accessed November 1, 2022]).
Salary deferrals are contributions an employee makes, in lieu of salary, to certain retirementplans:
401(k) plans
403(b) plans
SARSEP IRA plans (Salary Reduction Simplified Employee Pension Plans)
SIMPLE IRA plans (Savings Incentive Match Plans for Employees)
(United States Internal Revenue Service, https://www.irs.gov/retirement-plans/plan-participant-employee/retirement-topics-401k-and-profit-sharing-plan-contribution-limits [last accessed November 1, 2022]).
Box 14 on Plaintiff's W-2 indicates the amount of 414(h) retirement contributions to her retirement plan in the amount of $2,115.75. (New York State Department of Taxation and Finance, https://www.tax.ny.gov/pit/letters/414h-irc125-information.htm [last accessed November 1, 2022]).
The voluntary deferral of salary to Plaintiff's retirement plan in the amount of $19,500.00 and the amount of her 414(h) contributions to her pension plan in the amount of $2,115.75 are not already included in her taxable wages and as such will be imputed to her wages. (see see Sinnott v Sinnott, 194 A.D.3d 868 [2d Dept 2021]; citing Domestic Relations Law § 240 [1-b] [b] [5] [iii] [F]; Holterman v Holterman, 3 N.Y.3d 1 [2004]; Ballard v Davis, 259 A.D.2d 881 [3d Dept 1999]).
Plaintiff Wages and Other Compensation
$89,805.41
Plaintiff's Salary Deferral
$19,500.00
Plaintiff's Pension Contribution
$2,115.75
Total
$111,421.16
b. Plaintiff Rental Income from Marital Home
On February 9, 2022, this Court Ordered that the Plaintiff is to retain the rental income from the marital residence, pendente lite, and subject to reallocation at trial. (NY St Cts Filing [NYSCEF] Doc No. 83). Defendant alleges in his opposition that Plaintiff is renting the apartment in the marital residence for $750.00 per month and that $9,000.00 in income should be imputed from the rental to the Plaintiff's income. (NY St Cts Filing [NYSCEF] Doc No. 82).
In Plaintiff's reply she states, "I did not include the rental income I collect when calculating support because it is being used to pay the mortgage, which is a marital debt." (NY St Cts Filing [NYSCEF] Doc No. 95).
At the time of the February 9, 2022 Order of this Court permitting the Plaintiff to retain the rental income of the marital residence, pendente lite, and subject to reallocation at trial, there was no Order of this Court pertaining to maintenance, pendente lite. It would be inequitable at this time to permit the Plaintiff to retain the rental income of the marital residence, pendente lite, subject to reallocation at trial, and receive maintenance, pendente lite, and not have the rental income attributed to the Plaintiff as income.
The Court is therefore imputing an annual rental income in the amount of $9,000.00 to the Plaintiff, pendente lite, for the purpose of calculations made herein.
c. Plaintiff Rental Income from Properties Owned Jointly with her Brother
Defendant alleges that Plaintiff has failed to include in her income, "rental income that she may earn from the properties that she owns jointly with her brother." (NY St Cts Filing [NYSCEF] Doc No. 82). Defendant purports that one such property is across the street from the former marital residence and "[u]pon information and belief the Plaintiff is also co-owner of additional properties in Florida and Greece." (see id).
There is no credible evidence presented that the Plaintiff earns income from properties owned jointly with her brother and no imputation of income from this source will be made to the Plaintiff.
d. Social Security for Children
Defendant asserts that the Social Security Disability received by the children should be imputed to the Plaintiff's income. (see id).
"The mother did not waive her right to child support by accepting the child's Social Security benefits. A dependent child's Social Security benefits are designed to supplement existing resources and are not intended to displace the obligation of parents to support their children[.]" (see Matter of Wendel v Nelson, 116 A.D.3d 1057 [2d Dept 2014] citing Graby v Graby, 87 N.Y.2d 605 [1996]
"'Social Security disability dependents' benefits are an entitlement granted by Congress to children at no purchase cost to the disabled parent[.]'" (see Matter of Jones v Smith, 59 A.D.3d 546 [2d Dept 2009] quoting Graby v Graby, 87 N.Y.2d 605 [1996]). "'Although a dependent child's Social Security benefits are derived from the disabled parent's past employment, they are designed to supplement existing resources, and are not intended to displace the obligation of the parent to support his or her children[.]'" (see id; quoting Graby v Graby, 87 N.Y.2d 605 [1996]; citing Matter of Dorosky v Herald, 52 A.D.3d 829 [2d Dept 2008]; Matter of Pinto v Putnam County Support Collection Unit, 295 A.D.2d 350 [2d Dept 2002]).
Accordingly, the Social Security Disability payments received by the children will not be calculated as income to the Plaintiff for the purpose of calculations made herein.
e. Maujauskas Share of Defendant's Pension
Defendant is currently in pay status on his pension. The Defendant states in his affirmation in opposition, "[t]he Plaintiff's Maujauskas share [of the monthly marital figure of Defendant's pension] retroactive to the filing date amounts to $1,592.10 per month, or $19,105.00." (NY St Cts Filing [NYSCEF] Doc No. 82). Although, the Plaintiff has not actually received this income, Defendant purports that the annual amount should be included in the Plaintiff's income for the calculation of maintenance, pendente lite, and child support, pendente lite.
Plaintiff concurs in her reply that she is not receiving her marital portion of the Defendant's pension. (NY St Cts Filing [NYSCEF] Doc No. 95). Plaintiff further states, "[D]efendant does not want to calculate support based upon his full pension, however, he fails to give me any share of the pension[.] (see id)
There is no dispute that, while the Plaintiff is entitled to receive her Maujauskas share of the Defendant's pension, she has not received it to date. Accordingly, the amount of the Plaintiff's Maujauskas share of the Defendant's pension will not be attributed to the Plaintiff's income for the calculation of maintenance, pendente lite, and child support, pendente lite. Further the Plaintiff's Maujauskas share of the Defendant's pension will not be deducted from the Defendant's income for the calculation of maintenance, pendente lite, and child support, pendente lite.
II. Spousal Maintenance, Pendente Lite
Plaintiff seeks Defendant to be directed to pay to Plaintiff, retroactive to the date of the commencement of this action, July 7, 2022, monthly spousal support pursuant to DRL § 236 [B], pendente lite and subject to reallocation at trial.
Pendente lite maintenance is awarded to ensure that a needy spouse is provided with funds for their support and reasonable needs pending trial. It should be an accommodation between the reasonable needs of the moving spouse and the financial ability of the other spouse, determined with due regard for the pre-separation standard of living. (see Salmon v de Salmon, 173 A.D.3d 793 [2d Dept 2019]). In this matter, the length of the marriage and the disparity in income make pendente lite maintenance appropriate.
a. Calculation of Spousal Maintenance
Plaintiff
Defendant
Income from salaries or wages
$111,421.16
$0.00
Rental Income
$9,000.00
$0.00
Interest/Dividend Income
$2,987.82
$18,336.00
Disability Benefits
$0.00
$122,877.00
Social Security Benefits
$0.00
$31,710.00
Total Income
$123,408.98
$172,923.00
FICA: Social Security Tax
($6,908.11)
($0.00)
FICA: Medicare Tax
($1,615.61)
($0.00)
NYC Income Tax
($3,060.51)
($0.00)
Adjusted CSSA Income
$111,824.75
$172,923.00
2) Temporary Maintenance Calculation
Plaintiff
Defendant
Adjusted CSSA Income
$111,824.75
$172,923.00
First Calculation
20% of payor's income up to and including the cap
$34,584.60
Minus 25% of payee's income
($27,956.19)
RESULT 1
$6,628.41
Second Calculation
Payor's income up to and including the cap
$172,923.00
Plus payee's income
$111,824.75
Combined income
$284,747.75
40% of combined income
$113,899.10
Minus payee's income
($111,824.75)
RESULT 2
$2,074.35
Lower of the two results
$2,074.35
3) Guideline Amount of Temporary Maintenance
Annual
$2,074.35
Monthly
$172.86
Accordingly, maintenance is granted to the Plaintiff commencing in November 2022 in the monthly sum of $172.86 [One Hundred Seventy-Two Dollars and Eighty-Six Cents], pendente lite, subject to reallocation at trial.
The Plaintiff is further granted retroactive maintenance for the months of July 2022, August 2022, September 2022, and October 2022 in the amount of $691.44 [Six Hundred Ninety-One Dollars and Forty-Four Cents], pendente lite, subject to reallocation at trial.
III.Guideline Child Support, Pendente Lite
"A parent has an obligation to provide support for his or her child's basic needs, an obligation which is addressed in Domestic Relations Law §240 (1-b) (c) (1), (2)." (see Cimons v Cimons, 53 A.D.3d 125 [2d Dept 2008]. The Child Support Standards Act "provides a precisely articulated, three-step method for determining child support." (see Boltz v Boltz, 178 A.D.3d 656 [2d Dept 2019]. This three-step process includes (1) computing a combined parental income, (2) multiplying that income, up to a certain income cap, by a specific percentage, and (3) determining the amount of income that should be considered for child support purposes if the combined parental income exceeds the income cap. (See Cassano v Cassano, 85 N.Y.2d at 649 [1995]).
Plaintiff
Defendant
Adjusted CSSA Income
$111,824.75
$172,923.00
Guideline Maintenance
$2,074.35
($2,074.35)
Income Adjusted for Maintenance
$113,899.10
$170,848.65
Combined Income
$284,747.75
Statutory Combined Income Cap
$163,000.00
Applicable child-support percentage
25%
Annual Parental child support Obligation
$40,750.00
Each Parent's share of combined parental income
40%
60%
Annual Child Support
$16,300.00
$24,450.00
Monthly Child Support
$1,358.33
$2,037.50
IV. Above the Cap Child Support, Pendente Lite
Plaintiff requests the Court to award child support above the child support guidelines statutory combined parental income cap of $163,000.00. Plaintiff states in her affidavit that, "[t]he children have emotional and physical health issues that involve therapy and special requirements." (NY St Cts Filing [NYSCEF] Doc No. 70). Plaintiff further states, "[t]he standard of living the children enjoyed during the marriage was higher than average[.]" (see id). "Over the years, [the children] participated in multiple private music lessons, swimming lessons, karate, soccer and basketball." (see id). The younger child requires transportation to the city multiple time per week for his music rehearsals and performances as well as transportation to and from school, local practices, extracurricular activities. (see id).
The children attended summer camps and the French Woods Music Camp. (see id). Plaintiff further asserts, the younger child would like to continue to attend French Woods Music camp. (see id). In addition, Plaintiff states that the younger child will participate in competitions with the school band, which includes overnight stays in Virginia and Florida. (see id).
Defendant requests that the Court not award child support on income over the cap. Defendant states in his affidavit that "[t]he Plaintiff grossly overstates the lifestyle our children have enjoyed and provides no substantiation[.]" (NY St Cts Filing [NYSCEF] Doc No. 81).
"The CSSA sets forth a formula for calculating child support by applying a designated statutory percentage, based upon the number of children to be supported, to combined parental income up to a particular ceiling[.]" (see Matter of Hipp v Ryan, 188 A.D.3d 1206 [2d Dept 2020] citing Matter of Freeman v Freeman, 71 A.D.3d 1143 [2d Dept 2010]; Matter of Joshua G., 185 A.D.3d 924 [2d Dept 2020]; Matter of Peddycoart v MacKay, 145 A.D.3d 1081 [2d Dept 2016]).
Where the "combined parental income exceeds the statutory cap, the court shall determine the amount of child support for the amount of combined parental income in excess of such dollar amount through consideration of the factors set forth in Domestic Relations Law §240 (1-b) (4) and/or the child support percentage." (see Pandis v Lapas, 176 A.D.3d 837 [2d Dept 2019]; quoting Domestic Relations Law § 240 [1-b] [c] [3]; citing Matter of Levin v Blum, 167 A.D.3d 609 [2d Dept 2018]; Matter of Conway v Gartmond, 162 A.D.3d 1013 [2d 2018]; Beroza v Hendler, 109 A.D.3d 498 [2d Dept 2018]).
The Court finds the Plaintiff's claims regarding the lifestyle the children led prior to the breakup of the marriage to be credible and populated with great specificity. In addition to the children's emotional and physical health issues that require therapy and special requirements, these talented children have grown accustomed to participating in multiple musical and athletic activities, including private music lessons, swimming, karate, soccer, and basketball. The children have grown accustomed to a standard of living that includes attending regularly sporting events, movies, and bowling as well as travel for family vacations. This standard of living the children would have enjoyed had the marriage or household not been dissolved is a factor the Court considered in its determination whether to exceed the statutory cap. (see Domestic Relations Law § 240 (1-b) (f) (3)).
Defendant does not provide any specificity in refuting the Plaintiff's description of the lifestyle the children have become accustomed to. Defendant merely states that the "Plaintiff grossly overstates the lifestyle our children have enjoyed[.]" (NY St Cts Filing [NYSCEF] Doc No. 81).
The Court has further reviewed the evidence relating to the Defendant's income and has weighed these factors in adjusting the income cap for the purposes of calculating combined income for child support. (see Domestic Relations Law § 240 (1-b) (f) (1)).
In determining the appropriate amount of Child Support, pendente lite, the Court has considered all the factors under Domestic Relations Law §240 and has determined that under these facts it is appropriate for the Court to exercise its discretion in deviating from the cap and award child support on the full combined parental income up to $284,747.75.
1) Child Support Calculation on Combined Parental Income Above the Statutory Cap
Plaintiff
Defendant
Combined Parental Income Above the Statutory Cap
$284,747.75
Applicable Child Support Percentage
25%
Annual Parental Child Support Obligation
$71,186.94
Each Parent's Share of Combined Parental Income
40%
60%
Annual Pro Rata Shares
$28,474.78
$42,712.16
Monthly Pro Rata Shares
$2,372.90
$3,559.35
Accordingly, child support is granted to the Plaintiff commencing in November 2022 in the monthly sum of $3,559.35 [Three Thousand Five Hundred and Fifty-Nine and Thirty-Five Cents], pendente lite, subject to reallocation at trial.
The Plaintiff is further granted retroactive child support for the months of July 2022, August 2022, September 2022, and October 2022 in the amount of $14,237.40 [Fourteen Thousand Two Hundred Thirty-Seven Dollars and Forty Cents], pendente lite, subject to reallocation at trial.
Decretal Paragraphs It is hereby ORDERED, that the Plaintiff's request for monthly spousal maintenance pursuant to DRL § 236 [B], pendente lite, is GRANTED in that Defendant is to pay monthly maintenance to Plaintiff commencing in November 2022 in the monthly sum of $172.86 [One Hundred Seventy-Two Dollars and Eighty-Six Cents], pendente lite, subject to reallocation at trial, and that it is further;
ORDERED, that the Plaintiff's request for retroactive maintenance to the date of the filing of the motion is GRANTED in that Defendant is to pay retroactive maintenance for the months of July 2022, August 2022, September 2022, and October 2022 in the amount of $691.44 [Six Hundred Ninety-One Dollars and Forty-Four Cents], pendente lite, subject to reallocation at trial, and that it is further;
ORDERED, that the Plaintiff's request for monthly child support pursuant to the CSSA, Domestic Relations Law §240, pendente lite, is GRANTED in that Defendant to pay child support to the Plaintiff commencing in November 2022 in the monthly sum of $3,559.35 [Three Thousand Five Hundred and Fifty-Nine and Thirty-Five Cents], pendente lite, subject to reallocation at trial, and that it is further;
ORDERED, that the Plaintiff's request for retroactive child support to the date of the filing of the motion is GRANTED in that Defendant is to pay retroactive child support for the months of July 2022, August 2022, September 2022, and October 2022 in the amount of $14,237.40 [Fourteen Thousand Two Hundred Thirty-Seven Dollars and Forty Cents], pendente lite, subject to reallocation at trial.
ORDERED, that the Clerk of the Court shall enter judgment accordingly.
Any relief requested, and not specifically dealt with in this Decision and Order, is referred to the trial court.
The foregoing shall constitute the Decision and Order of this Court.