Opinion
53782/10.
Decided January 7, 2011.
Howard B. Beeler, Esq., New York, NY, Attorney for Plaintiff.
Patricia Ann Fersch Family Law Center, Danielle R. Petitti, Esq., New York, NY, Attorney for Defendant.
Upon the foregoing papers in this divorce action, defendant K.K. moves, pursuant to CPLR 3211 (a)(7), for an order dismissing plaintiff's action for failure to state a cause of action as the durational residency requirements of Domestic Relations Law § 230 have not been met. Defendant further moves to dismiss plaintiff's action pursuant to CPLR 3211 (a)(4) as there is another action pending between the same parties for the same cause of action in Connecticut. Alternatively, in the event the court determines that factual issues exist, defendant seeks a stay of the proceedings pursuant to CPLR 2201 pending an evidentiary hearing and determination. Finally, defendant moves pursuant 22 NYCRR 130-1.1 (a) for an order directing that plaintiff pay defendant's reasonable counsel fees and costs associated with defending this action. Plaintiff P.C. moves for an order restraining defendant from prosecuting the Connecticut action for divorce. Plaintiff further moves for an order directing defendant to pay him temporary maintenance in the amount of $2,500 per month.
Background
Plaintiff and defendant were married in New York on March 25, 2005. At the time of their marriage, plaintiff and defendant resided together in Manhattan. In September, 2005, the parties moved to an apartment located at 476 Jefferson Street in Brooklyn, where they resided together until August 2008. In or about August 2008, defendant and plaintiff moved to New Haven Connecticut, where defendant pursued a Masters Degree in international relations at Yale University. At the time defendant and plaintiff moved to Connecticut, the lease had expired on their Brooklyn apartment and they did not renew the lease. In Connecticut, the parties leased part of a private house beginning on August 1, 2008. The lease was renewed for a one-year period beginning on August 1, 2009. In or about May 2010, the parties' marriage began to fail and the possibility of a divorce was raised. In or about June 2010, after graduating from Yale, plaintiff interviewed for a number of jobs, including positions in New York and London. According to her affidavit, although defendant would have preferred to work abroad, she decided that the New York position would be better "because I knew that Plaintiff and I were about to start divorce proceedings and I did not think it would be a good idea to reside in London during [this time]." At or about this same time, plaintiff, who suffers from bipolar disorder, was hospitalized in Connecticut due to severe depression and suicidal thoughts. On June 21, 2010, defendant was offered a position in New York, which she accepted. Thereafter, defendant began looking for an apartment in New York City. On July 1, 2010, defendant leased an apartment in Brooklyn where she continues to reside. At or around the time the lease expired on the house in Connecticut, plaintiff moved in with his parents at their home in Willingboro, New Jersey, where he continues to reside.
On or about July 7, 2010, defendant commenced divorce proceedings against plaintiff in Connecticut (the Connecticut action). On or about July 12, 2010, plaintiff commenced the instant action seeking a divorce from defendant on the grounds of cruel and inhuman treatment. Plaintiff's complaint further seeks maintenance, equitable distribution, and attorney's fees. On August 30, 2010, plaintiff made the instant motion for an order restraining defendant from prosecuting the Connecticut action for divorce and for temporary maintenance in the amount of $2,500 per month. On September 2, 2010, defendant made the instant motion to dismiss plaintiff's action on the grounds that there is a prior pending action in Connecticut and that plaintiff failed to satisfy New York's durational residency requirements set forth in Domestic Relations Law § 230 for the commencement of a divorce action. On November 18, 2010, while these motions were pending, plaintiff's counsel advised the court that defendant's Connecticut action was dismissed by a court in that jurisdiction. Thereafter, the court contacted the parties regarding the instant motions and was advised that neither party would withdraw their motions.
The Connecticut Action and Injunctive Relief
Initially, it is clear that the dismissal of the Connecticut action has rendered portions of defendant and plaintiff's respective motions academic. In particular, that branch of defendant's motion which seeks dismissal of the instant action based upon the pendency of the (now dismissed) Connecticut action pursuant to CPLR 3211 (a)(4) has been rendered moot ( Van Bron Corp. v Gier's Farm Serv. Inc., 273 AD2d 811). In any event, even if defendant's action in Connecticut had not been dismissed, defendant would not be entitled to dismissal of the instant action based upon the prior pending case in Connecticut. Specifically, where, as here, the two actions are commenced only days apart and are at the earliest stages of litigation, the respective forums' connections to the case should predominate over the technical priority in the commencement of the actions ( San Ysidro Corp. v Robinow ( 1 AD3d 185 ). Here, neither party resides in Connecticut nor has any intention of doing so in the future. Indeed, neither plaintiff nor defendant appear to have any current connection to the state of Connecticut. In contrast, the parties were married in New York, defendant currently works and resides in New York, and plaintiff plans to move to New York in the future. Accordingly, that branch of defendant's motion which seeks the dismissal of plaintiff's complaint pursuant to CPLR 3211 (a)(4) is denied.
Turning to that branch of plaintiff's motion which seeks an injunction restraining defendant from prosecuting the Connecticut action, the court notes that, due to the doctrine of comity, the use of injunctive powers to prohibit a person from resorting to a foreign court are to be exercised sparingly inasmuch as it "constitutes a challenge to the dignity and authority of the foreign tribunal" ( Fenaughty v Fenaughty, 105 AD2d 942, 943). Here, given the fact that the Connecticut action has been dismissed, there is no need for this court to issue an injunction precluding defendant from prosecuting that action.
Domestic Relations Law § 230 Durational Residency Issue
Turning to that branch of defendant's motion which seeks dismissal of the instant action for failure to meet the durational residency requirements set forth in Domestic Relations Law § 230, defendant argues that neither she nor plaintiff have been a New York resident for a continuous period of at least one year immediately preceding the commencement of this action as required under the relevant subsections of the statute. In support of this argument, defendant submits her own affidavit in which she points to the undisputed fact that she and plaintiff moved from their apartment in Brooklyn, New York to a rental house in New Haven, Connecticut in August 2008, where they resided together through June 2010. Defendant further notes that, between August 2008 and July 2010 (when she leased her present apartment in Brooklyn), neither she nor plaintiff owned, maintained, leased, or otherwise resided in any residence located in New York. Thus, defendant concludes that plaintiff cannot satisfy the requirements of Domestic Relations Law § 230 through physical residency.
Further, defendant argues that plaintiff cannot meet the durational residency requirements of the Domestic Relations Law § 230 by arguing that the parties retained New York as their domicile after moving to Connecticut since they retained insufficient contacts with New York and had no intention of moving back to New York after her graduation from Yale. Specifically, defendant points out in her affidavit that after moving to Connecticut: (1) she and plaintiff did not lease or own a home of any sort in the State of New York between August 2008 and July 1, 2010; (2) she and plaintiff filed joint tax returns in the State of Connecticut in 2008 and filed for an extension to file tax returns in Connecticut in 2009; (3) plaintiff obtained a Connecticut driver's license and the parties purchased and registered a car in Connecticut; (4) the parties cancelled their gym memberships in New York and obtained new memberships with a gym in Connecticut; (5) the parties found and exclusively used new doctors in Connecticut and also found and used a Connecticut-based veterinarian for their dogs; (6) plaintiff cancelled his New York membership in a canoe/kayaking club and joined a Connecticut-based kayaking club and also became a member of a community garden in Connecticut; (7) all of the parties bank records and credit card statements listed their Connecticut address except for joint account statements, which were mailed to defendant's parents' New Jersey address; (8) the parties traveled back to New York no more than once every few months to visit family and friends and spent no more than seven nights in New York after moving to Connecticut.
With respect to the parties' intentions after she graduated from Yale, defendant avers that they had no plans to return to New York. In this regard, defendant notes that she was also accepted to the international relations masters program at Columbia University and, had the parties wished to remain in New York, she would have attended Columbia. Instead, defendant contends that both she and plaintiff desired to move to Europe, where plaintiff could pursue his career as an opera singer in Germany and defendant could work in London, Geneva, or Brussels. Defendant further notes that she applied for jobs in London and Brussels, and only took the job in New York when it became clear that the parties were headed for a divorce.
In opposition to defendant's motion to dismiss based upon the failure to meet the durational residency requirements set forth in Domestic Relations Law § 230, plaintiff does not dispute that he cannot satisfy the requirements of the statute through physical residency in New York for one year prior to the commencement of this action. However, plaintiff maintains that this is irrelevant inasmuch as the parties remained domiciled in New York even while they lived in Connecticut. In support of this argument, plaintiff submits his own affidavit in which he initially notes that defendant grew up in New York, went to high school and college there, and married in New York. Additionally, plaintiff points out that he and plaintiff lived together and worked in New York before and after their marriage. Plaintiff further avers the move to Connecticut was always intended to be temporary, and was undertaken for the limited purpose of allowing defendant to obtain her Masters degree from Yale. Plaintiff further states that, although the parties may have discussed moving to Europe after defendant graduated, there were never any concrete plans to do so and, in any event, defendant ended up moving back to New York after graduation. Finally, plaintiff points out that, even while they resided in Connecticut, the parties maintained contacts with New York. In particular, plaintiff notes that defendant used her mother's Staten Island address as her permanent address, defendant retained her New York State Driver's license and, in or about January 2009, defendant reapplied for a New York State driver's license using her mother's Staten Island address as her residence. In addition, defendant avers that both he and defendant retained their New York State voters' registration and voted in Brooklyn in the November 2008 presidential election. Finally, plaintiff notes that in the fall of 2009, while living with defendant in Connecticut, he also shared an apartment in Manhattan for three months while performing "cover work" for the Metropolitan Opera.
The durational residency requirements set forth in Domestic Relations Law § 230 were established "to preclude the use of our courts in matrimonial proceedings by spouses with no real ties with New York, who would flock here for the sole purpose of obtaining matrimonial relief unavailable in States that had substantial interests in the marital relationship" ( Unanue v Unanue, 141 AD2d 31, 41). Under Domestic Relations Law § 230 (1), an action for divorce may be maintained only when "[t]he parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding." Here, it is undisputed that the parties were married in New York and that defendant was a resident of New York at the time the action was commenced. Thus, the only issue before the court is whether or not defendant was a resident of New York for a continuous period of one year immediately preceding the commencement of this action on July 12, 2010. As plaintiff concedes, such residency cannot be established through the parties' physical presence in New York since they lived in New Haven, Connecticut for most of the one-year period preceding the commencement of this action. However, it is well-settled that "[p]hysical residency is not the sole test for determining compliance with Domestic Relations Law § 230, but is an alternative to domicile" ( Guedes v Guedes , 45 AD3d 533 , 534). Thus, irrespective of a lack of physical presence in New York, plaintiff may satisfy the requirements of Domestic Relations Law § 230 by demonstrating that he and/or defendant were domiciled in New York for one year prior to the commencement of this action.
When seeking to determine domicile, the general rule is that "[w]here the evidence establishes the existence of a New York domicile, the burden of proving a change of domicile is on the party asserting such a change" since an existing domicile is presumed to continue (Unanue v Unanue, 141 AD2d 31, 39). Further, relevant considerations in determining domicile include: a place of residence in the state of alleged domicile; length of time of such residence, leasing, buying, negotiating for or building a home; oral or written declarations made at the time of a move which shows an intent that a residence shall be permanent; place of worship and club memberships; place of performance of civic duties such as voting, jury duty and payment of taxes, place of bank account; jurisdiction where automobile is registered; and the state of issuance of a driver's license ( id. at 40). Finally, in determining whether the durational residency requirements of Domestic Relations Law § 230 have been met, courts may consider the general purpose of the statute — namely to prevent parties with no real connection with New York from bringing matrimonial actions here ( Unanue, 141 AD2d at 41).
Here, there is no dispute that prior to moving to Connecticut, both defendant and plaintiff were domiciled in New York. In this regard, defendant grew up in New York, went to high school and college in New York, and worked in New York after graduating from college. Further, the parties were married in New York in 2005 and subsequently lived and worked in New York up until August 2008. The real dispute is over whether the parties retained their New York domicile after moving to Connecticut. Accordingly, inasmuch as an existing domicile is presumed to continue, the burden lies with defendant to prove that she and plaintiff's domicile changed to Connecticut when they moved to that state ( Guedes, 45 AD3d at 534).
Defendant has failed to meet this burden. In this regard, plaintiff has demonstrated that, upon moving to Connecticut, he and defendant established substantial ties to that state including leasing a portion of a house, registering an automobile, and filing tax returns in Connecticut. However, it is clear that all of these ties were intended to be temporary in nature. In particular, although the parties disagree as to where they intended to live after defendant obtained her Masters Degree and started her career, there is no dispute that Connecticut was not amongst these potential locations. In fact, the parties only moved to Connecticut so that defendant could obtain her degree from Yale, and had no intention of remaining once this goal was accomplished. Accordingly, given the facts that the parties were domiciled in New York prior to moving to Connecticut and their residency in Connecticut was always intended to be temporary in nature, the court must presume that the New York domicile continued.
In making this determination, the court further notes that the parties retained certain ties with New York even while they lived in Connecticut. In particular, plaintiff and defendant remained registered to vote in New York and exercised this right on at least one occasion in November 2008. Defendant also retained her New York State driver's license after moving to Connecticut and even renewed this license using her parent's New York address. At the same time, defendant continued to use her parents' address in New York to receive mail. In addition, plaintiff shared an apartment in New York for several months in 2009 while performing work at he Metropolitan Opera. The court also notes that defendant specifically admitted that, once it became clear that a divorce was imminent, she put aside her plans to work abroad and decided to live and work in New York. This would appear to undercut defendant's argument that New York is not an appropriate forum for this divorce proceeding.
As a final matter, keeping in mind the aforementioned purpose of Domestic Relations Law § 230, this is not the type of divorce action which the statute was enacted to preclude — namely actions commenced by forum-shopping litigants with no real ties to New York. In particular, both parties have substantial and long-standing ties with New York which clearly outweigh their ties with any other jurisdiction. This is particularly true of defendant, who grew up in New York, was educated in New York through college, worked in New York before and after being married in New York, and lives in New York at the present time.
Accordingly, inasmuch as plaintiff has satisfied the durational residency requirement of Domestic Relations Law § 230 (1), defendant's motion to dismiss this action is denied. Further, in light of the court's determination, that branch of defendant's motion which seeks costs and counsel fees based upon the alleged frivolous nature of plaintiff's action is denied.
Temporary Maintenance
In support of his motion for temporary maintenance plaintiff notes that he is 31 years old and has been employed as an opera singer both before and during the marriage. However, plaintiff contends that his career and earning capacity as an opera singer has been negatively impacted by his bi-polar condition. Specifically, plaintiff notes that he was hospitalized for ten days in June 2010 and that, although he is now taking a regular regimen of psychotropic medication which enables him to work again, he remains vulnerable to stress. Further, plaintiff avers that his bi-polar condition, as well as his hospitalization, "is in large measure due to defendant's cruel and abusive treatment of me throughout the marriage."
Plaintiff further maintains that he was the main financial supporter of the family while defendant was attending school in Connecticut and that the relocation to Connecticut had a negative impact upon his opera career which continues to this day. Specifically, plaintiff notes that his entire professional network is centered in New York City, where his management agency, voice teacher, coaches, accompanists, mentors and colleagues are located, and the long commute between New Haven and New York City limited his access to this network. In further support of this contention, plaintiff submits a letter from a partner at plaintiff's management agency. In particular, the letter states that plaintiff was advised against moving to Connecticut and found that plaintiff's "distance from the city, coupled with his responsibilities around the home while his wife was in school . . . most certainly created difficulty in our task of furthering his career." In this regard, the letter notes that plaintiff often missed auditions in New York City due to traffic and missed trains and was isolated from his colleagues and mentors.
According to plaintiff, the damage done to his career and earnings as a result of his mental illness and the move to Connecticut has forced him to move in with his parents in New Jersey since he cannot afford an apartment of his own. Further, plaintiff maintains that this present separation from New York City continues to hamper his career prospects. Thus, plaintiff contends that he is entitled to financial support from defendant, which would give him the wherewithal to live in New York City, get his career fully back on track, and become self-supporting.
As part of his motion for temporary maintenance, plaintiff attaches a statement of net worth dated August 24, 2010. Plaintiff contends that his annual income for 2010 is $16,709.62, which breaks down to $1,392 a month. This amount includes money that plaintiff has already earned, along with money that plaintiff expects to earn for scheduled upcoming performances. Plaintiff arrives at this figure by adding the gross fees he has or will earn for his performances ($33,828.58) less expenses incurred or expected to be incurred. Included in these expenses is a $3,500 charge for a planned "audition tour" in Germany. Plaintiff's alleged 2010 income represents a significant decline from plaintiff's income in 2007 and 2008, when plaintiff earned $74,731 and $50,586 respectively. Plaintiff maintains that this decline in earnings is attributable to the aforementioned mental health issues as well as the relocation to Connecticut.
Plaintiff further maintains that his monthly expenses are an estimated $4,201.02, which includes $1,387 for an apartment rental share in New York City and for utilities there. Other alleged monthly expenses include $645 for food, $410 for clothing and laundry, $300 for entertainment, $338.73 for income taxes, and $452.29 in miscellaneous items. Finally, plaintiff lists $14,082 in assets and $18,259 in liabilities, including $9,524 for taxes due and $6,000 due on a note held by plaintiff's father. According to plaintiff, with the exception of $782 in his checking account, these assets are all non-liquid and cannot be used to support himself of pay-off existing debt.
In opposition to plaintiff's motion for temporary maintenance, defendant takes issue with plaintiff's claims that she is in anyway responsible for causing or aggravating plaintiff's psychiatric disorder. Defendant further disputes plaintiff's claim that he supported her financially while she was enrolled at Yale. In this regard, defendant points to the fact that she took out loans in the amount of $21,000 and further worked as a consultant to the UN and as a teaching fellow in order to pay her tuition. Further, defendant received a scholarship for the year 2009-2010 which covered the parties' rent and most living expenses. In addition, defendant avers that plaintiff did not assist in maintaining the parties' household and refused to perform basic chores such as cleaning.
Defendant contends that there is no merit to plaintiff's claim that his career was adversely impacted by the move to Connecticut. In this regard, defendant notes that much of plaintiff's work took place outside of New York City and in any event, plaintiff could easily commute between New York and New Haven via train or car. According to defendant, when plaintiff did miss auditions and performances, it was caused by plaintiff's inability to keep a schedule or arrive at events in a timely manner and had nothing to do with his location in Connecticut.
With respect to earning capacity, defendant argues that plaintiff's ability to earn money is the same as or greater than her own. In support of this contention, defendant notes that plaintiff earned $74,731 in 2007 and $50,586 in 2008. Defendant also claims that between September 2009 and April 2010, plaintiff earned between $40,000 and $48,000 performing cover work at the Metropolitan Opera. In addition, defendant argues that plaintiff could easily supplement this income by taking outside work such as private voice instruction, but plaintiff has refused to do so. Defendant also maintains that, unlike her, plaintiff comes from a well-to-do family which has always supported plaintiff financially. In support of this claim, defendant notes that plaintiff's parents gifted the parties two automobiles during their marriage and gave them money to purchase a washer and dryer. Further, plaintiff's parents paid for plaintiff's college tuition whereas defendant has over $60,000 in school debt. Defendant also contends that there is no merit to plaintiff's assertions that he needs to live in New York City in order to work and/or that she should be responsible for paying plaintiff's rent inasmuch as plaintiff owns a car and could commute from his parents' home in New Jersey into New York.
With respect to her own finances, defendant has submitted a statement of net worth which indicates that she earns approximately $78,000 per year and nets approximately $3,900 per month. Defendant avers that her expenses come to $4,010.40 per month, including $1,715 for rent and utilities and $510 for the re-payments of school loans. In addition, defendant claims assets of $27,852.36 and liabilities of $84,373.25, the majority of which consists of outstanding school loans. Finally, defendant notes that she continues to cover plaintiff under her health insurance plan.
In reply to defendant's opposition, plaintiff maintains that the income he earned in 2007 and 2008 may not serve as a guide to his future earnings capacity. In particular, plaintiff contends that defendant completely ignores the effect that his mental illness has had on his career. In this regard, plaintiff contends that the medication that he has been taking has hurt his singing ability and has made it difficult for him to obtain new roles. Plaintiff also notes that the roles for operas are scheduled far in advance and that whatever work he has obtained in 2010 was scheduled before his mental breakdown. According to plaintiff, he has very few roles scheduled for 2011. In addition, plaintiff points out that it takes approximately three hours to commute from his parents' home in New Jersey into New York City, thereby making it impractical for him to drive back and forth for auditions.
On or about October 13, 2010, plaintiff submitted an "affidavit in support of revised net worth statement" in which he claims certain recent significant changes in circumstances. In particular, plaintiff avers that on September 24, 2010, he suffered a relapse in his condition which resulted in his being hospitalized for a day. According to plaintiff, he is currently participating in an outpatient program at the Hampton Counseling Center three days per week from 9 AM to 12:30 PM. Plaintiff further submits a letter, dated October 7, 2010, from Alyssa Kwon, MD, which verifies that plaintiff is being treated at the Hampton Counseling Center for Bipolar disorder. Doctor Kwon states that the average stay in the outpatient program is 3-5 weeks, although length of stay can be longer or shorter depending on the patient. According to plaintiff, this relapse in his condition has caused him to cancel several scheduled performances which has cost him $8,828.58 in gross commissions. In addition, plaintiff states: "I am no longer able to continue performing as an opera soloist due to the stress and lack of structure involved in this type of career, and am in the process of terminating my contractual relationship with my manager." Finally, plaintiff states that he received a wire transfer of $57,961.60 which is an inheritance that his great aunt left to his father, who in turn gifted the money to plaintiff.
"The purpose of a pendente liteaward is to provide a needy spouse with funds for his or her support and reasonable needs" ( Shanon v Patterson, 294 AD2d 485, 485; accord Shapiro v Shapiro, 163 AD2d 294, 296 ["Pendente lite awards are designed to insure that a needy spouse is provided with funds for his or her support and reasonable needs and those of the children in his or her custody"]; see also McLeod v McLeod , 50 AD3d 979 , 979; Swickle v Swickle , 47 AD3d 704 , 704; Iannone v Iannone , 31 AD3d 713 , 714; Cooper v Cooper , 7 AD3d 746 , 747; Jordan v Jordan , 2 AD3d 687 , 688; Cohen v Cohen, 129 AD2d 550, 550). Such awards "are to be determined with due regard for the preseparation standard of living" ( Viola v Viola, 294 AD2d 493, 493-494; see also Mbanefo v Mbanefo , 60 AD3d 648, 649; Silver v Silver , 46 AD3d 667 , 668; Miller v Miller , 24 AD3d 521 , 521-522; Byer v Byer, 199 AD2d 298, 298) and in light of the respective financial conditions of the parties ( see Ferdinand v Ferdinand, 215 AD2d 350, 350). Given the interim nature of pendente lite relief, its purpose, as previously stated is, in essence, to "tide over" the more needy party during the pendency of the divorce action and not to determine the correct ultimate distribution of marital assets ( see Iannone, 31 AD3d at 714; Wolf v Wolf, 291 AD2d 491, 491; Albanese v Albanese, 234 AD2d 489, 489; Cavanagh v Cavanagh, 227 AD2d 365, 365; Fried v Fried, 225 AD2d 584, 584). In addition, "[w]hile considerations underlying the [pendente lite support] determination must be articulated, the court is not compelled to consider each factor enumerated in Domestic Relations Law § 236 (B) (6)" ( Sedlack v Sedlack, 298 AD2d 691, 692; accord Charnock v Charnock, 197 AD2d 759, 759[noting that, in issuing a pendente liteorder, "(t)he court is required to set forth the factors it considered and the reasoning underlying its determination"]).
In determining a motion seeking temporary maintenance, it is well settled that a court is not required to rely upon a party's own account of his or her finances and may impute income based upon that party's past income or demonstrated earning potential ( see e.g. Matter of Azrak v Azrak , 60 AD3d 937 , 938 [2d Dept 2009]; Steinberg v Steinberg , 59 AD3d 702 , 705; Khaimova v Mosheyev , 57 AD3d 737 , 737, 871 NYS2d 212; Talero v Talero , 1 AD3d 522 , 523; Sodaro v Sodaro, 286 AD2d 434, 435, appeal dismissed 97 NYS2d 677 [2001]). It must also be noted that Domestic Relations Law § 240 (1-b) (b) (5) (iv) (D) gives the court discretion to attribute and/or impute income to a party on the basis of "money, goods, or services provided by relatives and friends" ( see e.g. Matter of Simmons v Simmons , 48 AD3d 691 , 692 [citations omitted]). Thus, numerous cases support the finding that a court may properly impute income to a party based upon money received from his or her family ( see e.g. Cooper v Cooper , 52 AD3d 429 , 430 [the Special Referee properly imputed income to plaintiff where there was evidence that plaintiff received assistance from his wealthy father]; Matter of Todd R.W. v Gail A.W. , 38 AD3d 1181 , 1182 [the Support Magistrate was entitled to impute income to petitioner from substantial gifts provided to him by his parents]; Abellard v Aime , 18 AD3d 653 , 653 [the court properly considered the assistance petitioner received from his father in calculating his child support obligation by imputing the loans that he received from his father as income]; Miller v Miller , 18 AD3d 629 , 631 [the court should have considered the assistance plaintiff received from her mother when calculating her child support obligation]). Similarly, it has been held that it is proper for the court to impute income to a party based on the value of a rent-free home provided for him or her by a relative ( see e.g. Baffi v Baffi , 24 AD3d 578 , 579 [ 2005]; but see Mitchell v Mitchell, 264 AD2d 535, 538 , lv denied 94 NY2d 754).
Here, based upon the parties' current net worth statements, sworn affidavits, and related documentary submissions, the court determines that plaintiff is not entitled to a temporary maintenance award. In making this determination, the court recognizes the central importance of maintaining the status quo during the pendency of this divorce action while also keeping in mind the parties' pre-separation lifestyle, which was relatively modest. In particular, for the reasons set forth below, no temporary maintenance award is necessary in order to maintain plaintiff's status quo.
Initially, one of the primary reasons set forth by plaintiff in seeking temporary maintenance is his need to relocate to New York City in order to get his career as an opera singer "back on track." In particular, plaintiff maintains that it is essential that he be located close to his "professional network" as well as audition sites in New York City and that he needs defendant's financial assistance in order to afford the high cost of living in this location. However, in his reply affidavit, plaintiff has largely undercut this argument inasmuch as he has decided that, because of a deterioration in his mental health, he is no longer able to continue performing as an opera soloist and is terminating his relationship with his manager. Thus, there is no longer a need for plaintiff to live in New York City and bear the high cost of living in this location.
Further, with respect to plaintiff's income, the court notes that in determining the appropriate temporary maintenance award, it need not rely upon plaintiff's own accounts of his finances, but may look to plaintiff's past earnings or demonstrated earning potential ( Walker, 289 AD2d at 226). Here, plaintiff earned $74,731 in 2007 and $50,586 in 2008. Although plaintiff maintains that these earnings are not representative of what he can make at the present time, plaintiff has failed to submit any competent medical evidence demonstrating that his mental health condition has rendered him unable to work ( Greene v Holmes , 31 AD3d 760 ; Matter of Nickerson v Bellinger, 258 AD2d 688). In this regard, the court notes that Dr. Kwon's letter fails to mention anything regarding plaintiff's ability to work. Moreover, the court notes that plaintiff is currently living with his parents rent-free, which is imputable to plaintiff as income. In addition, plaintiff's father has gifted him $57,961.60 which originated from an inheritance. Thus, it is clear that plaintiff's claim in his motion papers that he lacks any assets to help support himself is no longer true.
Also weighing against any temporary maintenance award to plaintiff is defendant's limited ability to pay such an award. In this regard, defendant's affidavit and documentation indicates that she earns $78,000 a year in pre-tax income and nets approximately $3,900 per month. However, over half of this amount must be used to pay nondiscretionary expenses including rent and the repayment of school loans. In contrast, plaintiff pays no rent and has no school loans to repay. Indeed, adding the gifts he has received from his parents to his admitted income, it is clear that plaintiff's present financial condition is equal to or better than defendant's financial condition. Under the circumstances, no temporary maintenance award is warranted.
Conclusion
In summary, the court finds as follows: Defendant's motion to dismiss plaintiff's action pursuant to CPLR 3211 (a)(4) and CPLR 3211 (a)(7) is denied. Defendant's motion for attorney's fees and costs is also denied. Plaintiff's motion for an order staying defendant from prosecuting the Connecticut action is denied. Further, plaintiff's motion for temporary maintenance is denied.
The parties together with counsel shall appear in Part 5T on Monday, January 31, 2011 for a Preliminary Conference.
This constitutes the decision and order of the court.