Opinion
Index No. 55513/2021
03-23-2022
G.J., Plaintiff, v. R.K., Defendant.
Neal Sanford Comer, Esq. Attorney for the plaintiff Joshua R. Katz, Esq. Attorney for the defendant Robin D. Carton, Esq. Attorney for the children Kenneth L. Bunting, Esq. Attorney for the child
Unpublished Opinion
Neal Sanford Comer, Esq. Attorney for the plaintiff
Joshua R. Katz, Esq. Attorney for the defendant
Robin D. Carton, Esq. Attorney for the children
Kenneth L. Bunting, Esq. Attorney for the child
Robert S. Ondrovic, J.
The following papers were considered in connection with the defendant's motion, inter alia, for an award of temporary child support, and an order directing the plaintiff to pay to the defendant an amount representing one-half of the parties' 2020 tax refund and one-half of certain federal stimulus checks:
PAPERS NUMBERED
Order to show cause, affidavit, affirmation, exhibits A-F 1-9
Affidavit in opposition, affirmation in opposition, exhibits 1-4 10-15
Supplemental affidavit in support, supplemental affirmation, exhibits A-C 16-20
Supplemental affirmation in opposition, supplemental affidavit in opposition, exhibits 1-6 21- 40
Relevant Factual and Procedural Background
The parties were married on August 10, 2003, and are the parents of three unemancipated children, ages 17, 14, and 12 (hereinafter the subject children). Throughout the marriage, the parties and the children resided with the plaintiff's parents in a single-family home located at xxxx in Bedford, New York (hereinafter the marital residence). In April 2021, the plaintiff commenced this action for divorce and ancillary relief. The defendant answered the complaint and asserted a counterclaim for divorce and ancillary relief.
The defendant's motion
The defendant moved by order to show cause, inter alia, for an award of temporary child support, and an order directing the plaintiff to pay to her an amount representing one-half of the parties' 2020 tax refund and one-half of certain federal stimulus checks.
In a supporting affidavit, the defendant avers that she is employed as a real estate agent and earns $22,000 per year. She states that the parties' son is residing with the plaintiff, and that their daughters reside with her in a three-bedroom rental apartment.
The defendant submitted a statement of net worth (hereinafter SNW) dated July 6, 2021, which lists current monthly expenses totaling $7,306 and include: real estate taxes, $1,300; renter's insurance, $166; utilities, $1,080; food, $1,500; clothing, $400; insurance, $300; unreimbursed medical, $325; household maintenance, $695; automobile, $390; education, $435; recreational, $720; and miscellaneous, $320. The defendant's SNW lists assets of $28,761 in a Chase Bank checking account titled in her name, noting "parents" as the source of those funds; $1,000 in a Chase Bank checking account titled in her name; $9,700 in a Chase Bank savings account titled in her name, noting "commission" as the source of those funds; and $10,039 in a Chase Bank savings account titled in her name, noting "parents home sale," as the source of those funds. The defendant also lists assets of $11,303 in an e-trade account, noting "unemployment" as the source of those funds. The defendant's SNW indicates that she has an interest in a business known as "2530 Holland Avenue Corp." (hereinafter Holland Avenue Corp.).
The defendant included a copy of a 2020 United States Individual Income Tax Return filed by the parties, which lists adjusted gross income of $48,590, inclusive of $20,244 in unemployment compensation received by the defendant and the plaintiff's reported wages in the amount of $21,800. The defendant also submitted a 2020 Schedule C (Form 1040), Profit or Loss From Business, reporting gross income attributable to the defendant in the amount of $22,055, but a net profit of $4,355, after deducting $17,700 in business expenses.
In an affirmation, the defendant's attorney argues that the plaintiff "will likely hide his true income," that he "has control over multiple income-producing properties" and "collects the rent from these properties in excess of $49,000 per month" (NYSCEF Doc No. 19, ¶ 22). The defendant's attorney states that the plaintiff "has always utilized those funds to pay for all the parties' expenses" and "will likely hide behind his parents, who technically own these expansive real estate holdings" (id.).
The plaintiff's opposition
In an affidavit in opposition, the plaintiff avers that he earns an annual income of $21,800 and is employed as a driver. He denies owning any property and claims that the defendant "is the sole owner of many real estate properties that she manages" (NYSCEF Doc. No. 35, ¶ 18). Attached as an exhibit to the plaintiff's opposition papers is a 2020 W2 form, reporting wages in the amount of $21,800.
The plaintiff submitted an SNW dated April 28, 2021, which lists monthly expenses totaling $3,575 and include: rent, $1,250 as the sum "contributed towards housing expenses"; utilities, $476; food, $500 as the sum "paid by T.J. [the plaintiff's father]"; clothing, $250; insurance, $315; unreimbursed medical, $10; household maintenance, $73; automobile, $240; education, $255; recreational, $50; and miscellaneous, $156. The plaintiff's SNW indicates that he received a tax refund in 2020, in the amount of $12,094. The plaintiff lists assets of $1,201.13 in a Citibank checking account titled in his name and four vehicles that were purportedly gifted to him by his father.
The defendant's supplemental submission
In a supplemental affidavit in further support of the motion, the defendant states that the plaintiff was the primary wage earner during the marriage, and that "[h]is full-time job" was managing a 35-unit residential building located at xxxx Holland Avenue, Bronx, NY (hereinafter the Holland Avenue Building) (NYSCEF Doc No. 54, ¶ 5). She claims that the plaintiff, "[i]n anticipation of filing for divorce, accepted a part-time job as a driver so he can show minimal income to this Court" (id. at ¶ 5-6). She asserts that the plaintiff "is in complete control of the rental income from this property," which totals approximately $49,000 per month, and that those funds "is what financed [the parties'] lifestyle throughout the marriage" (id. at ¶ 7). In support of the motion, the plaintiff submitted a 2018 corporate tax return for Holland Avenue Corp., listing the plaintiff as its sole shareholder. She also submitted a deed dated October 27, 2003, indicating that the plaintiff and his mother, P.J., owned the marital residence as "joint tenants with the right of survivorship" (NYSCEF Doc. No. 57). The defendant argues that the expenses listed on the plaintiff's SNW are not credible and that based on the marital lifestyle, the record supports an imputation of income to the plaintiff in the amount of $227,505 per year.
In a supplemental affirmation, the defendant's attorney contends that even if the Holland Avenue Building and the marital residence are "under the control of" the plaintiff's parents, the Court must impute parental support as income to the plaintiff (NYSCEF Doc. No. 55, ¶ 7). The defendant's attorney asserts that, based on the plaintiff's annual imputed income of $227,505 and the defendant's most recent reported annual income of $22,500, the plaintiff's basic child support obligation for the parties' daughters is $4,379 per month, and the defendant's basic child support obligation for the parties' son is $300 per month, resulting in a monthly child support obligation from the plaintiff to the defendant in the amount of $4,079.
The plaintiff's supplemental submission
In a supplemental affidavit in further opposition to the motion, the plaintiff contends that "[his] parents funded a good portion of [his] living expenses for the entire duration of [his] marriage," and that neither party "contributed financially" (NYSCEF Doc. No. 91, ¶ 3). He asserts that although his name was included on the deed of the marital residence "it was always intended to be [his] parents' asset" (id. at ¶ 4). The plaintiff states that the Holland Avenue Building was purchased by his father in 1976, and that, in 2013, he was added "as a shareholder to the corporation... so that [his] parents could use [his] credit score and get a better rate to refinance the property" (id. at ¶ 5). The plaintiff maintains that he did not work for [his] father, [] did not manage his [father's] building, and [] did not receive an income" (id. at ¶ 5). The plaintiff states that the defendant "never contributed at all to [their] living expenses, and she enjoyed a comfortable lifestyle only because of the generosity of [his] parents" (id. at ¶ 8).
In a supplemental affirmation, the plaintiff's attorney argues that the defendant "appears to be actively hiding income, investments, and bank statements" (NYSCEF Doc No. 90, ¶ 6). He notes that the defendant owns numerous properties, and that the rental income from those properties totaling $180,000 per year are deposited into a checking account titled in her name (id. at ¶ 8). The plaintiff submitted copies of the defendant's 2020 bank statements, which reflect that the defendant received rental income in the amount of $13,655 in January 2020, and $17,105 in February 2020, and an additional $68,893.28 in "unidentified deposits" (id. at ¶ 11). The plaintiff's attorney notes that the defendant failed to disclose that she "began working for Dr. Buddhavarapu off the books on or about January 2020" and, in January 2021, "received two bi-weekly payments from Satya Medical Associates totaling $1,640.00" (id. at ¶ 14). He also contends that, "using Defendant's 2021 sold listings online... she has earned somewhere in the amount of $46,230 in commissions in 2021" (id. at 15). The plaintiff's attorney contends that the record supports an imputation of income to the defendant in the amount of $335,967.28. The plaintiff's attorney asserts that, based on the plaintiff's reported annual income of $21,800 and the defendant's annual imputed income of $335,967.28, the plaintiff's basic child support obligation for the parties' daughters is $420 per month, and the defendant's basic child support obligation for the parties' son is $4,398 per month, resulting in a monthly child support obligation from the defendant to the plaintiff in the amount of $3,978.
The plaintiff submitted an affidavit of his father, T.J., who avers that he purchased the Holland Avenue Building in 1976, and formed Holland Avenue Corp. in 1989, when the plaintiff was 17 years old. He asserts that in 2013, he named the plaintiff as sole shareholder of the corporation "because [he] was having difficulty refinancing the mortgage and [the plaintiff] had very good credit" (NYSCEF Doc No. 109, ¶ 5). Mr. J. states that he removed the plaintiff as the shareholder when he discovered that the defendant was forging the plaintiff's name on corporate checks to pay her personal debt. Mr. J. states that he and his wife "paid many of [the parties'] living expenses" and allowed them to reside in their home since the plaintiff was unable to provide for himself (id. at ¶ 6). He insists that the plaintiff never managed the Holland Avenue Building and was never paid a salary.
While the motion was pending, the Court appointed an attorney for the parties' daughters, and a separate attorney for the parties' son.
The Hearing
A hearing was held in January 2022, regarding the parties' respective motions concerning a postnuptial agreement entered into between the parties on July 10, 2019. At the hearing, the defendant testified, in relevant part, that during the marriage, the plaintiff "worked and owned" the Holland Avenue Building and had other "temporary jobs" (Transcript 1/26/2022 at 7, 25, 55, 60-61). She stated that the Holland Avenue Building was managed by "a combination of our family, and that she "did most of the paperwork, paid the bills, sent leases, [and] responded to vendors" (id. at 7, 16). The defendant stated that the plaintiff was the authorized signatory for Holland Avenue Corp.'s bank account and that she used a signature stamp bearing the plaintiff's name to endorse checks or just signed his name (id. at 7-8).
The defendant testified that in late 2015, her parents purchased certain investment properties located in Bridgeport, Connecticut, that were titled in either her name or her sister's name, and that she "help[ed] them run their investment business" (hereinafter the Connecticut properties) (id. at 11, 14, 71-72). The defendant insisted that the Connecticut properties "belonged to [her parents]," notwithstanding that they were listed on "Schedule B" of the parties' postnuptial agreement, which purported to be list of the defendant's separate property (id. at pp. 11, 14, 71). The defendant testified that the rent checks for the Connecticut properties are made out to her, and that she deposits the checks into an account held solely in her name (id. at 12, 72-73). She insisted that she "do[es] not use those funds" and that the rental income is her parents' money (id. at 71, 97). The defendant acknowledged that her "LinkedIn page" indicates that she is employed as a real estate investor by "RK3A Corporation," however, she testified that the corporation does not exist and it "is the name that [her] family uses as [their] corporation" (id. at 29, 71). The defendant admitted that from January 2021 until around October 2021, she worked part-time for Satya Medical Associates, and was paid via "Zelle" (id. at 30-33). She also acknowledged that in 2020, she received unemployment benefits while working as an independent contractor for Houlihan Lawrence (id. at 26, 33-38).
The plaintiff testified, among other things, that the Holland Avenue Building is owned by his parents and managed by his father (id. at 104-105, 138). The plaintiff denied that he was a shareholder of Holland Avenue Corp., but acknowledged that his father "probably" transferred shares of the company to his name (id. at 105-108). He stated that the parties' marital expenses, including vacations to Florida, "the cable bill, the car bill, the boiler bill," were paid from Holland Avenue Corp.'s bank account (id. at 107, 115, 122-123, 142).
The plaintiff testified that he has been employed as a driver since 2019 (id. at 109). He also testified that he transferred his ownership interest in the marital residence to a trust created by his parents "because it is [his] parents' house" (id. at 114). He asserted that neither of the parties ever contributed any of their own funds to the purchase of the Holland Avenue Building or the marital residence (id. at 138-139, 146-147). The plaintiff denied owning any of the assets listed on "Schedule A" of the parties' postnuptial agreement, including the Holland Avenue Building and the marital residence, which purported to be a list of the plaintiff's "separate property" (id. at 107).
At the conclusion of the hearing, the Court, inter alia, found "it hard to believe either [party] when it comes to credibility," and that "[i]t is clear that [Holland Avenue Corp.] has been paying for the lavish lifestyle that could not possibly be afforded by this couple based upon their reported returns" (id. at 158). The Court observed that each party claims that "neither of them own anything" and "[t]he parents own everything" (id. at 160).
Analysis
In determining a party's child support obligations, "[a] court need not rely upon a party's own account of his [or her] finances" (Duffy v Duffy, 84 A.D.3d 1151, 1151-1152 [2d Dept. 2011] [internal quotation marks omitted]; see Wesche v Wesche, 77 A.D.3d 921, 923 [2d Dept. 2010]). "The court may impute income to a party based on his or her employment history, future earning capacity, educational background" (Duffy v Duffy, 84 A.D.3d at 1152 [internal quotation marks omitted]; see Wesche v Wesche, 77 A.D.3d at 923), "resources available to the party, including 'money, goods, or services provided by relatives and friends'" (Matter of Fanelli v Orticelli, 178 A.D.3d 700, 702 [2d Dept. 2019], quoting Family Ct Act § 413 [1][b][5][iv][D]), or "when it is shown that the marital lifestyle was such that, under the circumstances, there [is] a basis for the court to conclude that the [party's] actual income and financial resources were greater than what he or she reported on his or her tax return[ ]" (Weitzner v Weitzner, 120 A.D.3d 1406, 1407 [2d Dept. 2014]). "Where a party's account is not believable, the court may impute a true or potential income higher than alleged" (Wesche v Wesche, 77 A.D.3d at 923; see Duffy v Duffy, 84 A.D.3d at 1152). "The court has considerable discretion in determining whether income should be imputed to a party and the court's credibility determinations are accorded deference on appeal" (Matter of Monti v DiBedendetto, 151 A.D.3d 864, 866 [2d Dept. 2017]; see Matter of Kiernan v Martin, 108 A.D.3d 767, 768 [2d Dept. 2013]).
After considering the parties' submissions in support of, and in opposition to, the defendant's motion, and after taking judicial notice of the parties' testimony at the hearing, it is abundantly clear to the Court that neither party's account of their actual income is credible and an imputation of income to both parties is necessary and appropriate.
Imputed income to the plaintiff
Although the plaintiff was, at one time, named sole shareholder of Holland Avenue Corp., and a record owner of the marital residence, he denies ever having any ownership interest in the Holland Avenue Building or the marital residence. The plaintiff denies that he ever managed the Holland Avenue Building, claiming instead that he was sporadically employed as an "electrical helper," a "carrier," and that he had a job at the post office (Transcript 1/26/2022 at 55, 109, 137).
Since around 2019, the plaintiff has been working as a driver on a part-time basis earning $21,800 per year. The plaintiff freely admits that during the marriage, the parties were wholly reliant upon his parents and the family business, Holland Avenue Corp., for financial support. During the marriage, the parties and the children resided with the plaintiff's parents in the marital residence, which was paid for by the plaintiff's parents using, in part, personal injury settlement proceeds received by the plaintiff's mother. The plaintiff and the parties' son continue to reside in the marital residence with the plaintiff's parents at little cost. According to the plaintiff's SNW, he contributes the sum of only $1,250 toward housing, and $476 toward utilities. The plaintiff testified that with his father's permission, all of the parties' personal living expenses were regularly paid for by Holland Avenue Corp. (id. at 115, 122-123).
The defendant contends, and the plaintiff does not dispute, that the fair market rent of the marital residence is at least $7,500 per month. Although the plaintiff argues that only a reasonable housing expense for the two bedrooms that him and the parties' son occupy may be imputed to him as income, the plaintiff submitted no evidence on that issue (see M.L.M. v R.G.M., 63 Misc.3d 1211 [A], 2019 NY Slip Op 50466[U], *5 [Sup Ct, Westchester County 2019]; Collins v Collins, 241 A.D.2d 725, 727-728 [3d Dept. 1997]). Given that the parties and the children had resided with the plaintiff's parents from around 2006 until 2021, and the plaintiff continues to do so with the parties' son, there is no reason for the Court to anticipate that the plaintiff's housing arrangement will change. In addition, the plaintiff insists that it is necessary for him to reside at the marital residence so that the children can continue attending Armonk schools.
Based on the foregoing, the amount of $6,250 per month, which represents the difference between the purported fair market rent of $7,500 per month for the marital residence and the amount allegedly paid by the plaintiff as "rent" ($1,250 per month) (NYSCEF Doc No. 51), is imputed as additional income to the plaintiff (see Alan D. Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Domestic Relations Law § 16:22 at 1039 ["[w]here the provision of housing is likely to continue, the court may impute income based on the difference between the market value of the housing and the amount actually paid for it by the custodial parent"]).
The Court also imputes an additional $21,100 to the plaintiff, which represents the difference between his reported income of only $21,800, and his alleged expenses totaling $42,900 per year.
The Court rejects the defendant's contention that it should impute additional income to the plaintiff based on his alleged ownership of the Holland Avenue Building given the complete lack of credibility of either party concerning "what [property] is actually owned by these parties and what may be owned by [their] parents" (Transcript 1/26/2022 at 158). Nevertheless, it is undisputed that all of the parties' personal expenses were regularly and systematically paid for by the plaintiff's parents and Holland Avenue Corp. Based on the evidence in the record, there is no basis to conclude that such largess will not continue. The Court also finds that the plaintiff's claimed expenses of $3,575 per month, as reflected on his SNW, are not credible, and that he fails to account for the multitude of personal expenses covered by his parents and Holland Avenue Corp. The Court imputes an additional $2,500 per month to the plaintiff, which accounts for, among other things, the children's cell phone expenses and the parties' annual vacation to Florida (both of which are not disclosed on the plaintiff's SNW), and an increase in his food, automotive, and recreational expenses. Although the plaintiff contends that the payment of these expenses constituted gifts, substantial and ongoing financial support provided by the plaintiff's parents and Holland Avenue Corp. may properly be imputed to the plaintiff as income (see Nederlander v Nederlander, 102 A.D.2d 416, 417 [1st Dept. 2013]; Baumgardner v Baumgardner, 98 A.D.3d 929, 930-931 [2d Dept. 2012]; see also Alan D. Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Domestic Relations Law § 16:21 at 1035 ["[t]he existence of a regular pattern of gifts strongly suggests that gifts are a recurring source of money and should be factored into the child support determination"]).)
Based on the foregoing, for purposes of calculating interim child support, the Court imputes additional income of $126,100 per year to the plaintiff's reported income of $21,800 per year, for a total annual income of $147,900.
Imputed income to the defendant
The evidence in the record demonstrates that during the bulk of the marriage, with the exception of one part-time job that lasted for approximately two years, the defendant did not work outside of the marital residence, staying at home to care for the parties' children. The defendant testified, however, that she "did most of the paperwork, paid the bills, sent leases, [and] responded to vendors" for the Holland Avenue Building (id. at 7, 16), but does not claim that she was paid a salary by Holland Avenue Corp. Consistent with the plaintiff's testimony, the defendant testified that all of the parties' personal living expenses were paid for by Holland Avenue Corp.
Since late-2019, the defendant has been working as a real estate agent for Houlihan Lawrence. The defendant avers in her affidavit that "[her] income is $22,000," as evidenced by her 2020 tax return (NYSCEF Doc. No. 54), yet she acknowledged at the hearing that her income is "[c]omission-based" (Transcript 1/26/2022 at 92-93). The plaintiff claims, based on the defendant's 2021 "sold listings," that she has earned approximately "$46,230 in commissions in 2021 (using a 1.5% commission)" (NYSCEF Doc. No. 90, ¶ 15).
As noted above, the defendant's 2020 Schedule C (Form 1040), Profit or Loss From Business, which incorrectly lists her profession as "limousine driver," reported a net profit of only $4,355, after deducting $17,700 in business expenses (NYSCEF Doc. No. 22).
The evidence in the record establishes that in 2020, while the defendant was working as a real estate agent for Houlihan Lawrence, she applied for and accepted unemployment benefits totaling $20,244, which were deposited into an e-trade account. In 2020, the defendant also worked at a doctor's office for a period of approximately four months (Transcript 1/26/2022 at 30). She testified that in lieu of a salary, the doctor "gave gifts, donated kind of college fund money for [the] children" (id.). In addition, from January 2021 through November 2021, the defendant worked for Satya Medical Associates and was paid a total of $24,016 in cash via Zelle, yet the defendant failed to disclose any of that income in her SNW dated July 6, 2021, or in her affidavits submitted in support of the motion.
The defendant asserts that although the Connecticut properties are titled in her name, and the rent checks for those properties are made out to her and deposited in an account held solely in her name, the Connecticut properties and the rental income generated therefrom belong to her parents. The defendant admits that she helps her parents "run their investment business" (id. at 11, 14, 71-72), and has represented on her resume that she is employed as a real estate investor by a fictitious business, "RK3A Corporation," however, she does not claim that she earns any salary for her work or that she receives any distribution from the family business.
The Court finds that the defendant's testimony regarding her income is not credible, but declines to impute income to the defendant based on her alleged ownership of the Connecticut properties. As stated above, each party insists that the properties titled in their respective names belong to their parents and not them, and the Court cannot, on this record for purposes of determining temporary child support, make any conclusive findings regarding actual ownership of the properties at issue. Nevertheless, the evidence in the record demonstrates that the defendant has access to financial resources, as evidenced by her bank statements, and has the potential to increase her future earnings, whether as a real estate agent, a real estate investor, or working at a doctor's office. The defendant reports annual expenses totaling four times the amount of her reported annual income of $22,000, and does not submit any evidence demonstrating that such expenses are not being paid in a timely manner.
Based on the foregoing, for purposes of calculating interim child support, the Court imputes annual income of $90,000 to the defendant, which is consistent with her annual expenses reported on her SNW.
Interim child support calculation
The Child Support Standards Act 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 the statutory cap that is in effect at the time of the judgment (see DRL § 240[1-b]; Holterman v Holterman, 3 N.Y.3d 1, 11 [2004]; Matter of Conway v Gartmond, 162 A.D.3d 1013, 1015 [2d Dept. 2018]). "Where the combined parental income exceeds the statutory cap, the court, in fixing the basic child support obligation on income over the statutory cap, has the discretion to apply the factors set forth in Domestic Relations Law § 240(1-b)(f), or to apply the statutory percentages, or to apply both" (Moradi v Buhl, 201 A.D.3d 928 [2d Dept 2022]; see Domestic Relations Law § 240 [1-b][c][3]; Matter of Cassano v Cassano, 85 N.Y.2d 649, 655 [1995]).
Here, as stated above, the plaintiff's imputed income for purposes of temporary child support is $147,900, the defendant's imputed income is $90,000, and the parties' combined parental income equals $237,900 (see DRL § 240[1-b][c][1]), of which the plaintiff's income comprises approximately 62% and the defendant's income 38%. Since it is undisputed that the parties' daughters reside with the defendant and the parties' son resides with the plaintiff, the Court must undertake two calculations to determine the temporary child support obligation.
Multiplying the combined parental income up to the statutory cap of $163,000 by the appropriate child support percentage of 25% for two children yields an annual parental child support obligation of $40,750, of which 62% is to be paid annually by the plaintiff, or $2,111.16 per month (see DRL § 240[1-b][c][2]). Multiplying the combined parental income up to the statutory cap of $163,000 by the appropriate child support percentage of 17% for one child yields an annual parental child support obligation of $27,710, of which 38% is to be paid annually by the defendant, or $873.58 per month (see DRL § 240[1-b][c][2]).
Next, because the combined parental income imputed to the parties exceeds the statutory cap currently set at $163,000, the Court must determine the amount of child support, if any, for the amount of the combined parental income in excess of $163,000. Under the circumstances of this case and upon consideration of the statutory factors set forth in DRL § 240(1-b)(f)(1-10), including the financial resources of the parties and the standard of living enjoyed by the children during the marriage, the Court finds it just and appropriate to calculate temporary child support based on combined parental income above the statutory cap (see Bari v Bari, 200 A.D.3d 835, 838 [2d Dept. 2021]; Matter of Levin v Blum, 167 A.D.3d 609, 611 [2d Dept. 2018]). The record demonstrates that the parties had unfettered access to Holland Avenue Corp.'s bank account to pay for personal living expenses, including vacations, and that they enjoyed a somewhat lavish marital lifestyle, despite their combined reported income of only $48,898 on their 2020 tax return.
The combined parental income above the cap is $74,900 ($237,900 - $163,000). Applying the statutory percentage of 25% for two children yields an annual parental child support obligation above the cap of $18,725, of which 62% is to be paid annually by the plaintiff, or $970.10 per month. After adding that to the plaintiff's monthly pro rata share of the child support obligation below the cap ($2,111.16), the plaintiff's total child support obligation for the parties' daughters equals $3,081.26 per month. Applying the statutory percentage of 17% for one child yields an annual parental child support obligation above the cap of $12,733, of which 38% is to be paid annually by the defendant, or $401.42 per month. After adding that to the defendant's monthly pro rata share of the child support obligation below the cap ($873.58), the defendant's total child support obligation for the parties' son equals $1,275 per month.
Thus, after deducting the defendant's monthly basic child support obligation of $1,275 from the plaintiff's monthly basic child support obligation of $3,081.26, the amount of temporary child support to be paid by the plaintiff to the defendant is $1,806.26. Such payments are to be paid by the plaintiff on the first day of each month, retroactive to the date the defendant's application for interim child support was made, which, in this case, was July 23, 2021 (see Sinnott v Sinnott, 194 A.D.3d 868, 878 [2d Dept. 2021]). The amount of retroactive child support owed by the plaintiff to the defendant is $14,974.48 ($524.40 for the period between July 23, 2021 and July 31, 2021, plus $14,450.08 for the period between August 1, 2021, and March 1, 2022), which may be paid in periodic sums until paid in full no later than three months from the date of this decision and order.
Interim counsel fees
There is a statutory "rebuttable presumption that counsel fees should be awarded to the less monied spouse" (DRL § 237[a]; see DiNapoli v DiNapoli, 200 A.D.3d 1027, 2031 [2d Dept. 2021]). "The decision to award an attorney's fee in a matrimonial action lies, in the first instance, in the discretion of the trial court and then in the Appellate Division whose discretionary authority is as broad as that of the trial court" (Turisse v Turisse, 194 A.D.3d 1090, 1093 [2d Dept. 2021] [internal quotation marks omitted]). "In exercising that discretion, the court must consider the financial circumstances of the parties and the circumstances of the case as a whole, including the relative merits of the parties' positions and whether either party has delayed the proceedings or engaged in unnecessary litigation" (Piccininni v Piccininni, 176 A.D.3d 880, 881 [2d Dept. 2019]).
Here, the defendant is the less-monied spouse based on the amount of income imputed by the Court to the parties, however, each party reported a similar annual income of only approximately $22,000 on their 2020 tax return. In addition, although the parties consistently testified that Holland Avenue Corp. sustained their marital lifestyle, and the plaintiff did not disclose that as income to him, the defendant has been far from forthcoming about her actual income. As stated above, in 2020, she accepted unemployment benefits totaling $20,244, while juggling at least four different jobs. It appears that those funds were not used to relieve any financial distress resulting from unemployment, but rather, were deposited in an e-trade account. Further, in support of the motion, the defendant continues to insist that her annual income is only $22,000, notwithstanding the evidence in the record that her actual current income is significantly higher.
The defendant testified that she worked as a real estate agent for Houlihan Lawrence; assisted a doctor's office for a period of approximately four months; a real estate investor for her family business "RK3A Corporation;" and handled the most of the paperwork, paid the bills, sent leases, [and] responded to vendors" for Holland Avenue Corp. (Transcript 1/26/22 at 7, 16).
Under these circumstances, the Court finds that an award of interim counsel fees to the defendant is not warranted.
Remaining issues
By her motion, the defendant seeks an order directing the plaintiff to pay to her an amount representing one-half of the parties' 2020 income tax refund, which, according to the plaintiff's SNW, was $12,094, and one-half of certain federal stimulus checks received by the plaintiff. Since the plaintiff failed to address or specifically oppose those branches of the defendant's motion, the plaintiff is directed to pay to the defendant an amount representing one-half of the parties' 2020 income tax refund and one-half of certain federal stimulus checks received by him within 30 days of the date of this decision and order.
Accordingly, it is, ORDERED that the branch of the defendant's motion which was for an award of temporary child support is granted to the extent that the defendant is awarded temporary child support in the amount of $1,806.26 per month, to be paid by the plaintiff on the first day of each month commencing April 1, 2022; and it is further, ORDERED that the plaintiff is directed to pay to the defendant the amount of $14,450.48, representing the amount of retroactive child support owed by the plaintiff to the defendant for the period between July 23, 2021, when the defendant's application for temporary child support was made, and March 1, 2022, in periodic sums until paid in full no later than three months from the date of this decision and order; and it is further, ORDERED that the branch of the defendant's motion which was for an award of interim counsel fees is denied; and it is further, ORDERED that the branches of the defendant's motion which were for an order directing the plaintiff to pay to her an amount representing one-half of the parties' 2020 income tax refund and one-half of certain federal stimulus checks received by the plaintiff is granted, and the plaintiff is directed to make the aforementioned payments to the defendant within 30 days of the date of this decision and order; and it is further, ORDERED that all other relief requested and not decided herein is denied.