Opinion
Index No. 365086/2020
03-28-2022
E.R., Plaintiff, v. L.S., Defendant.
Counsel for Plaintiff E.R., Mantel McDonough RISO, LLP, 410 Park Avenue, 17th Floor, New York, New York 10022, By: Melissa B. Mantel, Esq. Counsel for Defendant L.S., Miller Zeiderman LLP, 150 East 52nd Street, Ste 1002, New York, NY 10022, By: Tiffany E. Gallo, Esq.
Counsel for Plaintiff E.R., Mantel McDonough RISO, LLP, 410 Park Avenue, 17th Floor, New York, New York 10022, By: Melissa B. Mantel, Esq.
Counsel for Defendant L.S., Miller Zeiderman LLP, 150 East 52nd Street, Ste 1002, New York, NY 10022, By: Tiffany E. Gallo, Esq.
Ariel D. Chesler, J.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 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, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 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, 171, 172, 173 were read on this motion to/for INTERIM MAINTENANCE.
In this motion, Defendant seeks an order setting a schedule of occupancy for the parties’ Florida apartment and related relief, granting an award of temporary maintenance and directing the payment of various fees, and granting an award of interim counsel fees.
First, regarding the schedule of occupancy, Defendant seeks an alternating monthly or bi-weekly schedule for the parties’ jointly owned, jointly purchased Florida apartment. It is undisputed that Plaintiff, who has significant assets and control of the primary marital residence in Manhattan (from which he excluded Defendant), has made the Florida apartment his primary home since sometime in 2020. The parties have been unable to agree to a reasonable schedule of occupancy for the Florida apartment.
This situation is particularly concerning because, as detailed in the moving papers, the parties cannot peacefully be in the Florida apartment at the same time. Indeed, during an incident in November 2021 both parties were in the Florida apartment simultaneously and the police were called. Further, there was a full stay away criminal court order of protection against Plaintiff directing him to stay away from and not contact Defendant until February 2021, yet Plaintiff violated it by sending text messages to Defendant. Defendant also alleges that even when she has been able to use the apartment Plaintiff has made it difficult and uncomfortable for her by removing toilet paper, having pets stay in the home to which she is allergic, installing cameras, having guests stay there, and causing damage to furniture.
Plaintiff explains that he has established residency in Florida and that Defendant did not visit the apartment for a long time, and that he has lived with "his family" there. He also claims he has maintained the apartment and denies Plaintiff has done so. He also pays the carrying costs on the apartment. He denies ever leaving the apartment in a disgusting condition. According to Plaintiff, Defendant has changed or cancelled her travel plans even after the parties had agreed on certain dates, caused a scene with the condo management and security in June 2021, and took some of his documents in September 2021. He also claims that the incident in November 2021 occurred because Defendant never told him she would be coming at that time. He claims that she screamed at, threatened and assaulted him.
Plaintiff also explains that he has had his adult children, sister and other family stay at the apartment, and suggests that both parties should be permitted to have such guests. He further states that the condo permits emotional support animals, and his application for his guest's dog for such purposes was approved. Plaintiff also recognizes that Defendant "has always hated dogs" but claims she has no right to bar the animal from the apartment.
There is no question that the Florida apartment is a huge source of conflict between the parties and an access schedule is necessary. It is concerning that Plaintiff has commandeered the Florida apartment and has also excluded Defendant from the Manhattan residence. There has been no judicial determination granting one party exclusive use or a superior right in any property. Accordingly, there is no basis for Plaintiff's request that Defendant show proof of airplane tickets each time she plans to travel to Florida. Both parties should have the ability to frequently use the Florida apartment without getting permission from the other. Nor does Plaintiff have the right to unilaterally decide to have animals or invite guests to stay in the apartment, install security cameras, or make any substantial changes to the apartment or its use.
DRL 234 grants this Court a broad and flexible power to make directions about the possession of property during the pendency of this action. In order to guarantee each party has frequent, safe and comfortable access to the Florida apartment, it is ORDERED that the parties shall share the use of the Florida apartment on a bi-weekly basis until further order of the Court. Specifically, commencing April 1, 2022, Plaintiff shall be permitted exclusive use of the apartment from the 1st to the 15th day of each month, and the Defendant shall be permitted exclusive use of the apartment from the 16th to the last day of each month. Further, unless both parties expressly agree in writing, neither party may permit guests to use the apartment in the parties’ absence, no animals shall be permitted in the apartment, and no significant changes may be made to any aspect of the apartment. In addition, all security cameras installed by Plaintiff shall be immediately removed, and neither party may install such cameras unless both agree in writing. During the pendency of this action, Plaintiff shall continue to pay all the maintenance, assessments, repairs and utilities on the Florida apartment. If this schedule and other directives are not followed, the Court will entertain a request for one party to have exclusive use and occupancy of the apartment.
The Court also notes that considering Plaintiff's average income of $2 million annually and his more than $30 million in assets, Plaintiff can alternatively choose to rent (or ultimately purchase) his own apartment in Florida and have whichever guests or pets he wishes come to visit.
Defendant also seeks various payments based on a June 28, 2017 stipulation executed by the parties related to discontinuance of a prior divorce action. As is pertinent here, the stipulation provided for a marital residential living schedule; that the parties would file taxes jointly "for each year they are married"; that Plaintiff would be responsible for all accounting fees, income taxes, interest and penalties; that Plaintiff would deposit $1,250 to Defendant's account each month; and that Plaintiff would be responsible for 100% of all carrying costs for the Florida apartment with the exception of the homeowner's insurance.
Defendant states that Plaintiff only made seven payments of $1,250 and has refused to make any more or to satisfy the arrears through March 2022. Although the parties agreed to file taxes jointly, Plaintiff refused to file 2020 taxes jointly causing Defendant to incur tax liability for 2020 as well as interest and penalties. Defendant was also advised by her accountant that she is required to pay estimated taxes for 2021 as a result of her 2020 tax returns, and she expects Plaintiff to refuse to file joint taxes for 2021.
In particular, Defendant seeks payment of $1,250 per month as agreed and payment of arrears totaling $61,900, payment of $450 in accounting fees, $15,586 to the Internal Revenue Service for 2020 taxes and $8,035 in 2020 New York State taxes, penalties of $4,180.32, and payment of estimated 2021 federal taxes of $17,800 and State taxes of $7,163.
Defendant does not deny that the June 28, 2017 agreement is a valid stipulation or that he has specific obligations under the agreement. However, he claims Defendant has breached the agreement by not living with him according to the schedule listed in the agreement. Specifically, he states that she seldom came to the Manhattan apartment, signed up for extra work shifts despite the agreement, and did not ever follow the negotiated cohabitation schedule. Therefore, his position is that he has no obligations to pay Defendant any of the sums spelled out in the agreement.
In reply, Defendant explains that she is responsible for taking care of her elderly parents who suffer from dementia and that much of her time is devoted to them. She also notes that Plaintiff would often travel for work (80-100 days per year) and during such times she would stay at her apartment in Queens to be closer to her parents. Otherwise, she claims to have made the marriage and the agreed upon schedule a priority. Both parties agreed there were at least four occasions during which Plaintiff forced Defendant to leave the Manhattan apartment, and Defendant claims there were other times Plaintiff told her not to come to the Manhattan apartment, or canceled plans. Defendant maintains that it was Plaintiff who failed to incorporate her into his life and interfered with the agreed upon schedule, and that she attempted to comply with her obligations to the extent possible.
This Court cannot and will not determine which party is at fault for each one of the many arguments, canceled dates, disappointments and banishments that have occurred during their rocky, conflict-filled marriage. Regardless, neither the failure or inability to comply with a general cohabitation schedule releases Plaintiff from his clear and specific financial obligations in the 2017 stipulation. In other words, it is the determination of this Court that equity dictates that Plaintiff must comply with those clear and unequivocal obligations until the parties are divorced, particularly since Defendant could instead have moved for an award of interim maintenance pursuant to DRL § 236B(5-a).
Accordingly, it is ORDERED that commencing April 1, 2022, and on the 1st of each month thereafter during the pendency of this action, Plaintiff shall pay $1,250 to Defendant. Within two weeks of the date of this order, Plaintiff shall also pay to Defendant support arrears of $61,900. Further, within two weeks of the date of this order, Plaintiff shall pay to Defendant $27,801.32 to cover Defendant's total 2020 tax liability (including penalties). The parties shall file joint taxes for 2021 as provided in the 2017 Stipulation, or, in any case, whether filed jointly or separately, Plaintiff shall pay Defendant's 2021 tax liabilities. If the parties do not file (or have already not filed) joint 2021 taxes, Plaintiff shall pay Defendant's total 2021 tax liability to Defendant within one week of being notified of the amount owed.
Finally, Defendant seeks an award of interim counsel fees in the sum of $100,000. DRL § 237 creates a rebuttable presumption that counsel fees shall be awarded to the non-monied or less monied spouse. This presumption reflects the strong policy concern of ensuring "that marital litigation is shaped not by the power of the bankroll but by the power of the evidence" ( Charpie v Charpie , 271 AD2d 169, 170 [1st Dept 2000] ). It is therefore especially important to award counsel fees for the non-monied spouse when there is a substantial discrepancy between the incomes of the parties ( id. at 171 ). However, in addition to looking at the incomes of the parties, "in exercising its discretionary power to award counsel fees, a court should review ... all the other circumstances of the case, which may include the relative merit of the parties’ positions" ( DeCabrera v Cabrera-Rosete , 70 NY2d 879, 881 [1987] ).
In this case, there is no question that Plaintiff is the more monied spouse many times over. A review of the parties’ statements of net worth demonstrate that Plaintiff has over $30 million in assets, while Defendant has around $2 million is assets. Plaintiff also states his average annual income is $2 million (and the exhibits show he earned far more in certain years), while the documentation shows Defendant's income is below $100,000 annually.
Defendant has supported her application with her attorney's affirmation, retainer and invoices. Defendant also convincingly argues that she has incurred substantial counsel fees related to Defendant's obstruction and unreasonable positions on the Florida apartment, subpoenas, and payment of taxes among other things. Indeed, Plaintiff filed a motion to quash valid subpoenas, which this Court denied, and has behaved outrageously in connection with the parties’ jointly owned Florida apartment as well as in his refusal to comply with the 2017 stipulation.
Plaintiff argues that it is Defendant who has caused delays in this litigation, has rejected reasonable settlement offers, and takes the position that she should use her assets to pay her counsel fees.
Plaintiff is able to pay his counsel fees without any impact on his life. On the other hand, on top of her unexpected tax liability and unpaid support, Defendant does not have the income or assets to pay counsel fees. Defendant should not have to spend or exhaust her finite resources to pay her attorneys (see Lvovsky v. Lvovsky , 187 AD3d 580 [1st Dept 2020] ; Moreira v. Moreira , 201 AD3d 411 [1st Dept. 2022] ). Moreover, the Court is taking into consideration Plaintiff's unsupportable positions and egregious behavior in this litigation which have caused Defendant to incur significant counsel fees. Indeed, Defendant has incurred $100,000 in counsel fees since her current counsel was retained.
Accordingly, it is ORDERED that Plaintiff shall pay interim counsel fees in the amount of $100,000 payable directly to Defendant's counsel on or before April 25, 2022. Such fees are subject to reallocation at trial.
This constitutes the decision and order of this Court.