Opinion
Index No. 55305/2023
12-07-2023
K.L., Plaintiff, v. I.L., Defendant.
Counsel for the Plaintiff: Gregory Gorodetsky, GREG C. GORODETSKY ATTORNEY AT LAW. Counsel for the Defendant: Kelsey Williams, Rudyuk Law Firm, P.C.
Unpublished Opinion
Counsel for the Plaintiff: Gregory Gorodetsky, GREG C. GORODETSKY ATTORNEY AT LAW.
Counsel for the Defendant: Kelsey Williams, Rudyuk Law Firm, P.C.
RONALD CASTORINA, JR., J.
The following e-filed documents listed on NYSCEF (Motion #005) numbered 91-117, 119 were read on this motion.
Upon the foregoing documents, and upon consideration of oral argument conducted on December 4, 2023, Motion Sequence #005 is resolved as follows:
It is hereby ORDERED, that the Defendant's request for leave to renew Plaintiff's Motion Sequence #001, dated July 31, 2023, is GRANTED pursuant to CPLR § 2221 [e]; and it is further, ORDERED, that the Memorandum Decision and Order, pendente lite, rendered September 20, 2023, only as pertaining to maintenance, pendente lite, child support, pendente lite, and the parties' pro rata shares is vacated; and it is further, ORDERED, that Plaintiff's request for monthly spousal maintenance, pendente lite, is DENIED without prejudice to renew; and it is further, ORDERED, that the Defendant receive a credit for spousal maintenance payments made in accord with the Memorandum Decision and Order, dated September 20, 2023; and it is further, ORDERED, that Plaintiff's request for child support is GRANTED and Defendant is ORDERED, to pay to Plaintiff child support retroactive to September 1, 2023 in the monthly sum of $2,031.16 [Two Thousand Thirty-One Dollars and Sixteen Cents], pendente lite, subject to reallocation at trial; and it is further, ORDERED, that the Defendant receive a credit for child support payments made in accord with the Memorandum Decision and Order, dated September 20, 2023; and it is further, ORDERED, that Plaintiff's request for allocation of the parties' pro rata share of the child's add-on expenses is GRANTED in that, commencing the date of this Memorandum Decision and Order, Plaintiff is responsible for 40% of all of the child's add-on expenses, pendente lite, subject to reallocation at trial, and Defendant is responsible for 60% of all child add-on expenses, pendente lite, subject to reallocation at trial, and it is further;
ORDERED, that the Clerk of the Court shall enter judgment accordingly.
Memorandum Decision
I. Statement of Facts
Plaintiff K.L. and Defendant I.L. were married in a civil ceremony in the City of New York on May 16, 2014. There are two children of the marriage, to wit: A.L., DOB 12/24/2019, and S.L., DOB: 12/24/2013. The Plaintiff commenced this action for divorce on or about June 6, 2023. On November 20, 2023, Defendant filed Motion Sequence #005 by Order to Show Cause.
Defendant seeks (a) leave to renew Plaintiff's Motion Sequence #001, dated July 31, 2023 (Motion #001), pursuant to CPLR § 2221 [e], which resulted in the Memorandum Decision and Order, pendente lite, rendered September 20, 2023, and, upon renewal, vacating said Memorandum Decision and Order as pertaining to maintenance, pendente lite, and child support, pendente lite, and; (b) determination of maintenance, pendente lite, and child support, pendente lite, upon renewal of Plaintiff's Motion Sequence #001 be retroactive to the date of filing of the application, and credit to the Defendant for the payments he made according to the Memorandum Decision and Order, pendente lite, rendered September 20, 2023, and (c) such other and further relief as the Court may deem just and proper.
Plaintiff filed a cross-motion on December 4, 2023. Plaintiff withdrew cross motion on the record on December 4, 2023, and requested the motion be accepted only as opposition to Defendant's Motion Sequence #005. Oral argument was heard on Motion Sequence #005 on December 4, 2023. This is a Decision and Order on Motion Sequence #005.
II. Renew Motion Sequence #001 and Vacate Decision and Order
"Pursuant to CPLR § 2221, a motion for leave to renew 'shall be based upon new facts not offered on the prior motion that would change the prior determination' (see CPLR § 2221 [e] [2]) and 'shall contain reasonable justification for the failure to present such facts on the prior motion' (see CPLR § 2221 [e] [3])" (see Groman v Fleyshmakher, 2023 NYAppDiv LEXIS 5789 [2d Dept 2023] quoting Deutsche Bank Natl. Trust Co. v Galloway, 214 A.D.3d 625 [2d Dept 2023] citing Ferraro Foods, Inc. v Guyon, Inc., 165 A.D.3d 628 [2d Dept 2018])."[A] motion to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (see HSBC Bank USA, N.A. v. Krebs, 219 A.D.3d 1417 [2d Dept 2023] quoting Hernandez v Nwaishienyi, 148 A.D.3d 684 [2d Dept 2017]).
"A motion for leave to renew or reargue is addressed to the sound discretion of the Supreme Court" (see Kugler v Kugler, 174 A.D.3d 876 [2d Dept 2019] quoting Central Mtge. Co. v McClelland, 119 A.D.3d 885 [2d Dept 2014]).
"A motion for leave to renew 'shall be based upon new facts not offered on the prior motion that would change the prior determination' and 'shall contain reasonable justification for the failure to present such facts on the prior motion" Lindbergh v SHLO 54, LLC, 128 A.D.3d 642 [2d Dept 2015] quoting CPLR § 2221 [e] [2], [3]; citing Rakha v Pinnacle Bus Servs., 98 A.D.3d 657 [2d Dept 2012]; DeMarquez v Gallo, 94 A.D.3d 1039 [2d Dept 2012]; Matter of Choy v. Mai Ling Lai, 91 A.D.3d 772 [2d Dept 2012]).
"The new or additional facts either must have not been known to the party seeking renewal or may, in the Supreme Court's discretion, be based on facts known to the party seeking renewal at the time of the original motion" (see Deutsche Bank Trust Co. v. Ghaness, 100 A.D.3d 585 [2d Dept 2012] citing Dervisevic v Dervisevic, 89 A.D.3d 785 [2d Dept 2011]; Rowe v. NYCPD, 85 A.D.3d 1001 [2d Dept 2011]).
"Although a motion for leave to renew generally must be based on newly-discovered facts, this requirement is a flexible one, and a court has the discretion to grant renewal upon facts known to the movant at the time of the original motion, provided that the movant offers a reasonable justification for the failure to submit the additional facts on the original motion" (see Castor v Cuevas, 137 A.D.3d 734 [2d Dept 2016] quoting Matter of Allstate Ins. Co. v. Liberty Mut. Ins., 58 A.D.3d 727 [2d Dept 2009]; citing Matter of Osorio v Motor Veh. Acc. Indem. Corp., 112 A.D.3d 831 [2d Dept 2013]; Deutsche Bank Trust Co. v Ghaness, 100 A.D.3d 585 [2d Dept 2012]; Dervisevic v Dervisevic, 89 A.D.3d 785 [2d Dept 2011]; Gonzalez v Vigo Constr. Corp., 69 A.D.3d 565 [2d Dept 2010]). "What is considered a 'reasonable justification' is within the Supreme Court's discretion" (see id quoting Heaven v McGowan, 40 A.D.3d 583 [2d Dept 2007]; citing Calle v Zimmerman, 133 A.D.3d 809 [2d Dept 2015]).
On August 17, 2023, when Defendant filed opposition to Plaintiff's Motion Sequence #001, Defendant was not in possession nor was the Defendant able to obtain at that time certain bank account statements, credit card statements, and other financial information related to Plaintiff's income. On October 23, 2023, Defendant was able to obtain certain financial documentation in response to a Subpoena Duces Tecum served on J.P. Morgan Chase, which have been attached to this motion as Exhibit B (NY St Cts Filing [NYSCEF] Doc No. 94).
Accordingly, Defendant's request for leave to renew Plaintiff's Motion Sequence #001, dated July 31, 2023, is GRANTED pursuant to CPLR § 2221 [e]; and it is further, ORDERED, that the Memorandum Decision and Order, pendente lite, rendered September 20, 2023, only as pertaining to maintenance, pendente lite, child support, pendente lite, and the parties' pro rata shares is vacated.
III. Imputation of 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]).
"It is settled that '[in] a matrimonial action involving issues of equitable distribution of marital property, public policy clearly mandates full financial disclosure'" (see Richter v Richter, 131 A.D.2d 453 [2d Dept 2022], quoting Charpentier v Charpentier, 495 N.Y.S.2d 89 [2d Dept 1985], citing Domestic Relations Law § 236 [B] [4]; Rubenstein v Rubenstein, 117 A.D.2d 593 [2d Dept 1986]; Hirschfeld v Hirschfeld, 114 A.D.2d 1006 [2d Dept 1985], affd 69 N.Y.2d 842 [1987]; Van Ess v Van Ess, 100 A.D.2d 848 [2d Dept 1984]; 22 NYCRR § 202.16.
"In determining a party's maintenance and child support obligations, '[a] court need not rely upon a party's own account of his [or her] finances, but may impute income based upon the party's past income or demonstrated future potential earnings[.]'" (see Tuchman v Tuchman, 201 A.D.3d 986 [2d Dept 2022] quoting Duffy v Duffy, 84 A.D.3d 1151 [2d Dept 2011]; citing Wesche v Wesche, 77 A.D.3d 921 [2d Dept 2010]; Steinberg v Steinberg, 59 A.D.3d 702 [2d Dept 2009]).
"The court may impute income to a party based on his or her employment history, future earning capacity, educational background, or money received from friends and relatives[.]" (see id quoting Duffy v Duffy, 84 A.D.3d 1151 [2d Dept 2011]; citing Matter of Rohme v Burns, 92 A.D.3d 946 [2d Dept 2012]; Wesche v Wesche, 77 A.D.3d 921 [2d Dept 2010]).
"Where a party's account is not believable, the court may impute a true or potential income higher than alleged[.]" (see id quoting Wesche v Wesche, 77 A.D.3d 921 [2d Dept 2010]; citing Duffy v Duffy, 84 A.D.3d 1151 [2d Dept 2011]). "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[.]" (see id quoting Matter of Monti v DiBedendetto, 151 A.D.3d 864 [2d Dept 2017]; citing Matter of Kiernan v Martin, 108 A.D.3d 767 [2d Dept 2013]).
A review of Plaintiff's Chase banking statement for account ending 6825 from December 28, 2022 through September 27, 2023 (NY St Cts Filing [NYSCEF] Doc No. 94) reveals massive amounts of transfers in and out of the Plaintiff's account. Excluding deposits that were clearly identified as refunds, returned charges or deposits from the Defendant, in the nine months of bank records provided for this one account there were approximately, $8,255.00 in cash deposits, $796.00 in unknown deposits, $4,089.00 in Paypal deposits, $29,844.00 in Zelle deposits, $983.00 in Vemo deposits, and $12,500.00 in remote deposits. The total amount of deposits was more than $56,000.00.
In addition to these deposits, there were numerous transfers for significant amounts of money from account ending 6233. The Court further reviewed the Plaintiff's updated statement of net worth (NY St Cts Filing [NYSCEF] Doc No. 94), which was filed via NYSCEF on December 4, 2023. Plaintiff reports the same income, $42,000.00, as was reported in her initial statement of net worth filed on July 31, 2023 (NY St Cts Filing [NYSCEF] Doc No. 20) yet reports $14,742.29 less in monthly expenses.
Upon having reviewed the evidence provided in the form of the Plaintiff's banks statements for the one account that the Defendant was to obtain through subpoena, the Court finds the Plaintiff's financial claim of an annual income as reported in her updated statement of net worth of $42,000.00 to be incredible.
There is evidence at this juncture submitted by the Defendant that supports the Defendant's allegation that the Plaintiff's income is significantly higher than reflected in the parties' reported income. The Court is therefore imputing an annual income of $85,000.00 to the Plaintiff and an annual income of $135,030.00 to the Defendant, pendente lite, for the purpose of calculations made herein, pendente lite, subject to reallocation at trial.
II. Spousal Maintenance, Pendente Lite
In Motion Sequence #001, Plaintiff sought an Order directing the Defendant to pay monthly Maintenance to Plaintiff pursuant to Domestic Relations Law §236 [B] [5-a] based on the parties' respective incomes.
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 party's maintenance obligation commences, and is retroactive to, the date an application for maintenance was first made" (see Levitt v Levitt, 97 A.D.3d 543 [2d Dept 2012] citing DRL § 236 [B] [6] [a]; Scarpace v Scarpace, 84 A.D.3d 1537 [3d Dept 2011]; Groesbeck v. Groesbeck, 51 A.D.3d 722 [2d Dept 2008]; Grassi v. Grassi, 35 A.D.3d 357 [2d Dept 2006]).
A. Guideline Amount Calculation Spousal Maintenance
Plaintiff
Defendant
Total Income
$85,000.00
$135,030.00
FICA: Social Security tax paid*
($2,629.79)
($8,371.86)
Medicare tax paid*
($615.03)
($1,957.94)
New York City income tax paid*
($1,154.60)
($4,735.68)
Adjusted CSSA Income
$80,600.58
$119,964.52
* FICA: Social Security tax, Medicare tax, and New York City tax calculated based on the income amount reported on the parties' most recent tax return.
First Calculation
20% of payor's income up to and including the cap
$23,992.90
Minus 20% of payee's income
$20,150.15
Result 1
$3,842.76
Second Calculation
Payor's income up to and including the cap
$119,964.52
Plus payee's income
$80,600.58
Combined income
$200,565.10
40% of combined income
$80,226.04
Minus payee's income
($80,600.58)
Result 2
- $374.54
Lower of the two results
- $374.54
Accordingly, Plaintiff's request for monthly spousal maintenance, pendente lite, is DENIED without prejudice to renew; and it is further, ORDERED, that the Defendant receive a credit for spousal maintenance payments made in accord with the Memorandum Decision and Order, dated September 20, 2023.
III. Child Support
"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
$80,600.58
$119,964.52
Maintenance Adjustment
$0.00
$0.00
Income Adjusted for Maintenance
$80,600.58
$119,964.52
Combined Parental Income
$200,565.10
Applicable Child Support Percentage
25%
Annual Parental Support Obligation
$40,750.00
Share of Combined Parental Income
40%
60%
Annual Pro Rata Shares
$16,376.10
$24,373.90
Accordingly, the Plaintiff's request for child support is GRANTED and Defendant is ORDERED, to pay to Plaintiff child support retroactive to September 1, 2023 in the monthly sum of $2,031.16 [Two Thousand Thirty-One Dollars and Sixteen Cents], pendente lite, subject to reallocation at trial; and it is further, ORDERED, that the Defendant receive a credit for child support payments made in accord with the Memorandum Decision and Order, dated September 20, 2023.
IV. Add-On Expenses for Child, Pendente Lite, Subject to Reallocation at Trial
It is ORDERED that all the child's add-on expenses, including, but not limited to (1) child care expenses while the custodial parent is working; (2) unreimbursed medical expenses, to include but not limited to co-payments, pharmaceutical expenses, optical, dental, therapeutic sessions, mental health services, and related health care expenses; and (3) education expenses to include but not limited to private school tuition, mandatory fees, books, labs, uniform expenses shall be divided on a pro-rata basis. Plaintiff is responsible for 40% of all add-on expenses for the child, pendente lite, subject to reallocation at trial, and the Defendant is responsible for 60% of all add-on expenses for the child, pendente lite, subject to reallocation at trial. Parties' responsibility for their pro rata shares of add-on expenses for the child shall be effective the date of this Order.
Decretal Paragraphs
ORDERED, that the Defendant's request for leave to renew Plaintiff's Motion Sequence #001, dated July 31, 2023, is GRANTED pursuant to CPLR § 2221 [e]; and it is further, ORDERED, that the Memorandum Decision and Order, pendente lite, rendered September 20, 2023, only as pertaining to maintenance, pendente lite, child support, pendente lite, and the parties' pro rata shares is vacated; and it is further, ORDERED, that Plaintiff's request for monthly spousal maintenance, pendente lite, is DENIED without prejudice to renew; and it is further, ORDERED, that the Defendant receive a credit for spousal maintenance payments made in accord with the Memorandum Decision and Order, dated September 20, 2023; and it is further, ORDERED, that Plaintiff's request for child support is GRANTED and Defendant is ORDERED, to pay to Plaintiff child support retroactive to September 1, 2023 in the monthly sum of $2,031.16 [Two Thousand Thirty-One Dollars and Sixteen Cents], pendente lite, subject to reallocation at trial; and it is further, ORDERED, that the Defendant receive a credit for child support payments made in accord with the Memorandum Decision and Order, dated September 20, 2023; and it is further, ORDERED, that Plaintiff's request for allocation of the parties' pro rata share of the child's add-on expenses is GRANTED in that, commencing the date of this Memorandum Decision and Order, Plaintiff is responsible for 40% of all of the child's add-on expenses, pendente lite, subject to reallocation at trial, and Defendant is responsible for 60% of all child add-on expenses, pendente lite, subject to reallocation at trial, and it is further;
Any relief requested, and not specifically addressed in this Decision and Order is referred to the trial court.
ORDERED, that the Clerk of the Court shall enter judgment accordingly.
The foregoing shall constitute the Decision and Order of this Court.