Opinion
Index No. 365167/2022
08-18-2022
E.A., Plaintiff, v. J.A., Defendant.
Counsel for Defendant, Teitler & Teitler, LLP, By: Jaime Weiss, Esq. Counsel for Plaintiff, Mantel McDonough Riso LLP, By: Kevin Maximilian McDonough, Esq.
Unpublished Opinion
Counsel for Defendant, Teitler & Teitler, LLP, By: Jaime Weiss, Esq.
Counsel for Plaintiff, Mantel McDonough Riso LLP, By: Kevin Maximilian McDonough, Esq.
ARIEL D. CHESLER, J.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 94, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 224, 225, 232, 243, 244, 245, 246, 247, 248, 249, 250, 251, 252, 253, 254, 255, 256, 257, 258, 259, 260, 261 were read on this motion to/for PENDENTE LITE.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 210, 211, 212, 267, 268, 269, 270, 271, 272 were read on this motion to/for LEAVE TO FILE.
In this motion for pendente lite relief (motion sequence 1), Plaintiff Wife seeks an order directing Defendant Husband to pay all carrying charges on the marital residence as well as for household staff, 100% of medical related expenses, 100% of the children's educational expenses, camp, and extracurricular activities, unallocated spousal and child support in the amount of $60,000 per month, the payment of $250,000 in interim counsel fees, and the payment of $75,000 in interim expert fees. She also seeks exclusive use of her Range Rover and for Defendant to pay all associated costs, an award of $125,000 for a summer rental, the appointment of a Guardian Ad Litem and Neutral Forensic, an interim parenting schedule, the cessation of surreptitious recording of her and the production of any such recordings, and the payment of any expert fees needed in connection with such recordings.
Defendant cross-moves for sole custody, a parenting schedule, a direction that Plaintiff utilize one of the childcare providers during her parenting time, and for modifications to interim relief granted by the Court.
Separately, Defendant moved for permission to file reply papers (Motion Sequence 2), to consolidate motion sequence 2 with motion sequence 1, for an order directing Plaintiff to explain how she obtained an encrypted chat, and for other relief relating to Defendant's Rolex. The Court previously permitted Defendant permission to file reply papers and now grants the request to consolidate the motions.
Notably, while the parties have resolved some aspects of the motion and others have been resolved by interim order of the Court, the parties now ask this Court to determine the remaining branches of these motions.
BACKGROUND
The parties were married on June 11, 2017 in New York. This divorce action was commenced on April 18, 2022. There are two children of the marriage: one born in October 2018, and the other born in April 2021. The marital residence, where the parties currently reside with their two children, is a townhouse valued at approximately $8 million located in the Upper East Side of Manhattan.
The Husband, who is 31, is the co-vice president of [Redacted], a telecommunications company co-founded by his father. The Wife, who is 27, does not make an income and has no assets. In the year of 2020, the Husband totaled an adjusted gross income of $2,604,004. In 2021, the year before this action was commenced, the husband earned approximately $2,587,530.62. The parties drive luxury automobiles, have access to numerous perquisites through Defendant's corporation and spend thousands of dollars per month on clothing and accessories including from retailers such as Bergdorf Goodman, Chanel, and Bottega Venetta. Their children attend a private preschool, the parties traveled by private jet on high end vacations throughout the world, have household staff, regularly eat at luxury restaurants and spend thousands of dollars on Kosher groceries, and summered in Deal, New Jersey at the $7 million mansion owned by Defendant's family.
A number of the issues raised in the motion were resolved on consent or handled via interim orders. First, the Court appointed a Guardian Ad Litem and a neutral forensic in this matter. Defendant also consented to pay 1) all carrying charges on the marital residence; 2) 100% of Plaintiff's and children's monthly medical insurance premiums and unreimbursed medical expenses, 3) 100% of the children's educational expenses; 4) 100% of the children's summer camp activity expenses and extracurricular expenses; 5) 100% of the cost of the parties' household staff; and 6) Plaintiff's car expenses. Separately, Defendant was directed by the Court to pay $20,000 in unallocated support each month while the motion was pending.
Based on allegations raised in the motions, Plaintiff was directed to utilize one of the two live-in childcare providers during her parenting time. The parties, who still share the townhouse, were also directed to alternate weekend parenting with the children, and to ensure the children maintain their routine in the marital home except for special occasions.
In an interim order issued on June 14, 2022, the Court set forth a summer parental access schedule, and directed Defendant to pay $125,000 to Plaintiff for a summer home rental in Deal, New Jersey. The Court also directed the parties not to disparage each other in front of the children, or discuss the litigation with the children, and to ensure that extended family members not disparage the other parent in front of the children. Both parties were also directed to refrain from committing any family offenses against the other, not to surreptitiously record the other, not to plant listening devices on the other party, and not to access private text communications of the other party.
CONDUCT OF THE PARTIES
The parties in this matter are young parents of two very young children and they have many years of co-parenting ahead of them, and will ultimately be connected through their children for the remainder of their lives. Everything they do impacts their children both now and going forward. Therefore, to the extent possible they should both be seeking to minimize conflict, provide stability and love for their children, and to resolve their differences in a productive manner, as opposed to any focus on winning.
Unfortunately, there are allegations of concerning behavior by both parties. The conduct necessitating this motion by Defendant included cutting off Plaintiff's access to credit cards, ceasing to deposit monies into the parties' joint account, and severely limiting her access to any funds. Defendant also had an interest in [Redacted] which was somehow "reclaimed" by the company just days before this action was commenced. In addition, Plaintiff alleges that Defendant suddenly got involved with the children's daily activities in order to interrupt and prevent Plaintiff from exercising her normal parenting duties, and, as alleged by Plaintiff, to "take" the children from her. Further, Plaintiff discovered a recording device in her purse which was apparently used to record her conversations and "spy" on her without her consent.
Defendant raises various concerns about Plaintiff's behavior, judgment, and mental health. These include upsetting threats she has made regarding the children, and concerns that she has an eating disorder that impacts her parenting and general health. In addition, Plaintiff somehow got access to encrypted chats sent between Defendant and his family members.
It is further alleged that Plaintiff "stole" Defendant's Rolex watch, sold it on a fashion website, then engaged in an elaborate coverup of this conduct, and ultimately repurchased the watch and returned it as if nothing had happened. However, this "Rolex incident" must be viewed in the context of Defendant's extreme financial pressure he placed on Plaintiff and the children. Indeed, Plaintiff notes that she needed to sell the watch to provide for herself and the children, and that she always planned to repurchase it when she could.
The concerning behavior and allegations exhibited by both parties led this Court to issue a directive that neither commit any family offenses against the other. This includes a cessation of any surreptitious recording of the other, making of threats, and the theft or dissipation of any property. Such directive shall continue and is intended to limit conflict and prevent further concerning behavior in this matter. If such directive is not heeded by the parties the Court will have to consider the issuance of mutual orders of protection which will carry the threat of arrest and related consequences. However, rather than escalate the conflict, it is expected that the parties move forward for the sake of the children.
Many of the other concerns raised here will be reviewed by the neutral forensic and will be considered by the Court following the receipt of the forensic report. In addition, the Court has appointed a Guardian Ad Litem to represent the children's interests and set forth certain parenting parameters until more information is received.
In addition, Defendant shall provide an affidavit confirming he is not secretly recording or tracking Plaintiff in any manner. Defendant shall also turn over all such recordings through counsel. Finally, to the extent necessary, Defendant shall be 100% responsible for the cost of technical consultants hired by Plaintiff to locate any and all recording devices, and shall immediately pay any such costs upon receipt of a bill.
Further, Plaintiff shall cease accessing any encrypted chats and provide an affidavit confirming she is not doing so and further confirming that she is not in the possession of any of Defendant's watches or personal possessions. To the extent there are further questions about Defendant's Rolex or encrypted chats, Plaintiff must provide a full accounting of same in discovery or at her deposition.
CUSTODY
The Court declines to award any party sole legal or physical custody of the children. Instead, the Court has set forth temporary parental access schedules and certain parameters. The Court awaits the forensic report and any ultimate determinations regarding custody are referred to trial. To the extent necessary the Court will consider interim parental access schedules if the parties are unable to agree on such schedules after the end of Summer 2022.
SPOUSAL AND CHILD SUPPORT
As noted, Defendant agrees to pay: 1) all carrying charges on the marital residence and household staff; 2) 100% of Plaintiff's and children's monthly medical insurance premiums and unreimbursed medical expenses, 3) 100% of the children's educational expenses; 4) 100% of the children's summer camp activity expenses and extracurricular expenses; 5) 100% of the cost of the parties' household staff; and 6) Plaintiff's car expenses.
Defendant now seeks to modify his consent to limit his responsibility to medical, educational (other than directly billed school tuition), camp and extracurricular expenses for the children he agrees to in advance, and a direction that Plaintiff pay her own medical expenses.
Although it is generally reasonable for certain of the above expenses to be agreed upon in advance by the parties jointly, the Court is concerned that consent not be withheld unreasonably and that Defendant not engage in further unwarranted financial control of Plaintiff. Given the dynamic between the parties, activities and extracurricular expenses should continue to be covered as they were during the marriage and should not be suddenly limited during this action. Thus, the Court declines to give Defendant veto power over these various expenses for the parties and children. Given the disparate financial circumstances between the parties and the status quo during the marriage, the Court also declines to separate out Plaintiff's medical expenses as requested by the Defendant.
In order to reduce further conflict between the parties, the Court also now awards Plaintiff exclusive use of the Range Rover automobile, and awards Defendant exclusive use of the Porsche. However, Defendant shall continue to pay all associated costs for both vehicles.
The formula to determine temporary spousal maintenance outlined in Domestic Relations Law §236(B)(5- a)(c) is intended to cover all of a payee spouse's basic living expenses, including the costs of food and clothing, and other usual expense (See Vistocco v. Jardine, 116 A.D.3d 842 [2d Dept 2014]). Pursuant to DRL § 236(B)(5-a), courts must arrive at a presumptive award of temporary maintenance by first determining the parties' incomes, based on the parties' most recently filed tax returns and in accordance with the definition of income set forth in the Child Support Standards Act (see DRL § 240[1-b][b][5]). After this determination is made, the court must then perform a series of calculations using those figures. The final number that is derived through this process is the presumptive award.
While DRL §236(B)(5-a) sets forth formulas for the Court to apply to the parties' reported incomes in order to determine the presumptively correct amount of temporary spousal support, the Court has discretion to deviate upwards of the income cap where it finds that the award is inappropriate based upon a number of factors (See Warshaw v. Warshaw, 173 A.D.3d 582, 583-584 [1st Dept 2019] ["calculation of maintenance award over the income cap is not based on an 'automatic formula but is based upon a set factors enunciated in DRL 236 (b) (5-a) (h) (1)]; Caputo v. Caputo, 152 A.D.3d 643 [2d Dept 2017]). Deviation from the presumptive award, whereby a court orders the higher-income spouse to pay the lower-income spouse a greater or lesser amount, considers the parties' income disparity and the standard of living during the marriage.
In awarding temporary child support, the Court can but is not required to consider the CSSA guidelines (see DRL 240 [1-b][c]; Rubin v. Salla, 78 A.D.3d 504, 505 [1st Dept 2010]). Pursuant to the CSSA, to calculate the presumptive award of child support, the Court must first determine the combined parental income.
According to the parties' 2021 tax return, Defendant made an income of $2,571,737 and Plaintiff had no income. The statutory cap of $203,000 for maintenance yields an award of $3,383 per month in temporary maintenance for Plaintiff. If such sum were the temporary maintenance award, the Court would proceed to calculate child support using that as Plaintiff's income. The presumptive amount of basic child support obtained by calculating the statutory percentage for 2 children (25%) of the combined parental income cap of $163,000 results in child support of $40,750 per year. The Plaintiff's pro rata share of that sum would be $57.33 per month (1.69%) and Defendant's pro rata share would be $3,338.51 per month (98.31%). According to Defendant, a combined maintenance and child support award of approximately $6,721 per month would be sufficient and appropriate here.
The Court next considers whether upon review of the statutory factors awarding the guideline temporary maintenance would be unjust and inappropriate (see DRL § 236 (B) (5-a)(h)(1); Caputo v. Caputo, 152 A.D.3d 643 [2d Dept 2017]). The parties were married for nearly 5 years. The Wife is 28 years old and the Husband is 31 years old. Neither reports health issues. The parties' children are 3 years old and 1 year old respectively.
Plaintiff has no income, assets, or present earning capacity and has been a full-time homemaker and mother throughout the marriage. She possesses only a high school education and has never had any meaningful income-earning employment. Indeed, Plaintiff has foregone any career development in order to care for the children and household. In contrast, Defendant is the heir to the [Redacted] corporation, earned an average of approximately $2.6 million in the past two years, and has access to numerous perquisites through his company. There is thus a tremendous difference in both present and future earning capacity. Plaintiff would certainly need to engage in additional education and training in order to enter the workforce.
The marital lifestyle and the standard of living for the children was one that could only be enjoyed by the privileged few, and included living in a townhouse in the Upper East Side, along with household staff, luxury shopping and vacations, and private preschool for the parties' children. There is no doubt that Defendant continues and will continue to enjoy this lifestyle far into the future.
Further, there is a serious question regarding marital waste in connection with the "reclaiming" of Defendant's interest in [Redacted] days before this action was commenced. Relatedly, the Court has concerns about Defendant's litigation tactics in this action and the significant financial pressure he placed Plaintiff under.
In sum, upon consideration of the above stated factors, the Court finds it clearly inappropriate to award only temporary maintenance and child support up to the caps as proposed by Defendant. In crafting an award, the Court also considers the expert reports provided by the parties. According to Plaintiff's expert - KLG BUSINESS VALUATORS & FORENSIC ACCOUNTANTS, LLC (KLG) - the Plaintiff and children's yearly spending for the year of 2021, plus one half of the "miscellaneous" and "joint expenses" spent by both parties, results in a total of $310,260.37 per year, or $25,855.0308 per month.
Notably, those sums are for costs over and above all the basic household carrying costs and add-ons which Defendant generally agrees to cover. Many of these sums are hard to categorize and show that these expenses are intertwined between the Plaintiff and children and all members of the household. Indeed, these sums include things like cash withdrawals and Venmo payments, as well as Amazon purchases (for food and other household necessities), clothes shopping and dining out, which likely benefitted both the children and Plaintiff.
Using the same calculation of Plaintiff and the children's expenses plus one half of the "miscellaneous" and "joint expenses" spent by both parties, Defendant's expert - BST & Co. CPAs, LLP (BST) - suggests a total of $186,370.50 per year, or $15,530.875 per month. In any case, both experts utilized by the parties arrive at sums well above the awards of maintenance and child support proposed by Defendant.
Upon consideration of the various factors outlined above, as well as the calculations of the parties' experts, the Court determines it is inappropriate to award the guideline maintenance and child support only up to the cap. Instead the Court will utilize an adjusted cap of $800,000 for its calculations, or approximately one-third of the parties' combined income (see e.g. Klauer v Abeliovich, 149 A.D.3d 617 [1st Dept 2017][upholding use of $800,000 adjusted cap]). Using this cap results in monthly temporary maintenance of $13,333.33 and monthly temporary child support of $15,557.87. The sum total Defendant would have to pay to Plaintiff each month would therefore be $28,894.69.
However, this Court finds that this award of nearly $29,000 per month is too high relative to the total amount spent in 2021, and in light of the significant expenses and carrying costs already being covered by Defendant, including the parties' townhouse, as well as paying the childcare staff and add-on expenses. Upon consideration of the various factors, the Court finds that an amount of $24,000 in unallocated support adequately reflects a support level that meets the needs and continuation of the children's and Plaintiff's lifestyle. Notably, the award of support is unallocated because, as described above, many of the expenses are intertwined and at this early phase of the action more discovery is needed to fully understand the expenses of the parties and children.
Accordingly, Defendant shall pay unallocated support in the amount of $24,000 each month to Plaintiff, payable on the 15th day of each month, and retroactive to the date of the application, or April 25, 2022.
INTERIM COUNSEL AND EXPERT FEES
Plaintiff seeks an order directing Defendant to pay for Plaintiff's interim counsel and expert fees. According to Domestic Relations Law §237 (a), there is a "rebuttable presumption that counsel fees shall be awarded to the less monied spouse." DRL § 237(a). This rebuttable presumption "'is designed to redress the economic disparity between the monied spouse and the non-monied spouse' and ensure that 'the matrimonial scales of justice are not unbalanced by the weight of the wealthier litigant's wallet.'" Frankel v. Frankel, 781 N.Y.S.2d 59, 60 (2004) quoting O'Shea v. O'Shea, 93 N.Y.2d 187 (1999). In exercising the court's discretion, the court must assure that each party will be adequately represented and that, where fees and expenses are to be awarded, they shall be awarded on a timely basis pendente lite so as to enable adequate representation from the commencement of the proceedings. DRL § 237. As such, an interim award of attorney and expert witness fees must be considered on the basis of the relative financial circumstances of the parties, specifically where the moneyed spouse is in a superior financial position and the non-moneyed spouse has finite assets. Gober v. Gober, 724 N.Y.S.2d 48 (2001).
Here, Defendant is the monied spouse between the parties, whereby his wealth is in the millions of dollars and continues to amass during the pendency of this action. Plaintiff has no income or assets. Plaintiff has supported her application with her statement of net worth, a copy of her retainer, an affirmation from counsel, and billing statements. The Court is also concerned about the litigation tactics employed by Defendant which necessitated the motion and caused Plaintiff to incur significant counsel fees. It is also notable that by the end of May 2022 Defendant had paid his counsel approximately $133,000. There is no doubt that additional fees have accrued since that time.
Similarly, Plaintiff requests expert fees which are clearly necessary given the various business interests and expenses that have to be evaluated in this action. Plaintiff supports this request with an affidavit from her expert. As with counsel fees, Plaintiff has no income or assets from which she can pay such fees (see Mitnik v Mitnik, 144 A.D.3d 428 [1st Dept 2016]).
Accordingly, Defendant is ordered to pay for the Plaintiff's interim counsel fees in the amount of $250,000 directly to Plaintiff's attorneys, and to pay Plaintiff's interim expert fees in the amount of $75,000 directly to Plaintiff's experts, subject to reallocation at trial and without prejudice to further applications.
Accordingly, it is hereby
ORDERED that motion sequence 1 and 2 are consolidated; and it is further
ORDERED that all interim relief granted in the Order to Show Cause on Motion Sequence 1 shall continue except as modified herein; and it is further
ORDERED that within two weeks of this Order Defendant provide an affidavit confirming he is not secretly recording or tracking Plaintiff in any manner and that he also turn over all such recordings through counsel. Defendant shall be 100% responsible for the cost of technical consultants hired by Plaintiff to locate any and all recording devices, and shall immediately pay any such costs upon receipt of a bill; and it is further
ORDERED that Plaintiff shall cease accessing any encrypted chats and within 2 weeks of this Order provide an affidavit confirming she is not doing so and further confirming that she is not in the possession of any of Defendant's watches or personal possessions; and it is further
ORDERED that any award of custody is denied and referred to trial; and it is further
ORDERED that Defendant shall continue paying 100% of all carrying costs and add-on expenses, and commencing on the date of this Order Defendant shall pay unallocated support to Plaintiff each month in the amount of $24,000, with the payment due on the 15th day of each month, and the award retroactive to April 25, 2022. Any arrears owed shall be paid on or before September 16, 2022; and it is further
ORDERED that Plaintiff is awarded exclusive use of the Range Rover automobile, and Defendant is awarded exclusive use of the Porsche; and it is further
ORDERED that Defendant shall pay Plaintiff's interim counsel fees in the amount of $250,000 directly to Plaintiff's counsel, with $125,000 to be paid within 30 days of this Order, and the second payment of $125,000 to be paid within 75 days of this Order. Such fee award is subject to reallocation; and it is further
ORDERED that Defendant shall pay interim expert fees of $75,000 directly to Plaintiff's expert within 30 days of this Order. Such award is subject to reallocation; and it is further
ORDERED that the interim order issued on June 14, 2021 remains in effect and shall continue; and it is further
ORDERED that all relief not granted is denied.
This constitutes the Decision and Order of this Court.