Upon the following papers read on the motions, to wit: 1. Plaintiff’s Order to Show Cause and Supporting Papers (e-file document #s 47-66 and 69-71); 2. Defendant’s Notice of Cross Motion and Supporting Papers (e-file document #s 72-84); 3. Plaintiff’s Affidavit & Affirmation Opposition (e-file document #s 85-91) 4. Defendant’s Reply Affidavit (e-file documents #s 94-97). DECISION & ORDER Branch (4) of Plaintiff’s Order to Show Cause was resolved by a Stipulation dated April 20, 2021.1 BRIEF BACKGROUND The parties in this action were married on January 3, 2010 and have two (2) unemancipated children, to wit: M.D., born January 30, 2012 and J.D., born June 17, 2013. The instant proceeding was commenced on May 27, 2020 and the Preliminary Conference in this matter was held on September 29, 2020. The Plaintiff (“Husband”) is 52 years old and is a self-employed attorney. The Defendant (“Wife”) is 45 years old is a self-employed accountant. Both parties are successful professionals, each earning in excess of $300,000.00 per year. The specifics of their respective incomes are discussed, infra. The parties living arrangements are as follows: from Monday through Thursday, the Wife and the children reside in the marital residence located at 117 Northside Drive, Sag Harbor, New York and the Husband resides in a rental apartment in New York City (to be close to his law practice); and for the remainder of the week, the family resides together in marital residence. This living arrangement began in or around 2018 when the Husband closed his East Hampton office.2 Currently before the Court are dueling applications for pendente lite relief. PARTIES’ INCOMES As mentioned, supra, the parties to this action are wealthy, successful professionals and this family has enjoyed an upper-class lifestyle during their marriage. However, the Wife disagrees with the Husband’s recitation of his income. Further, the Wife, despite being an accountant, indicates that the Husband prepared the family’s and business tax returns and she contests certain deductions on same. In his moving papers, the Husband states his 2019 income, net of business expenses, was $335,348.00; and the Wife’s 2019 income was $321,250.003, net of business expenses. See also e-file document #s 50 and 51. The Court notes that the parties previously rented the marital residence during the summer 2019 but said rental income shall not be included in this application. In the Wife’s moving papers, she argues that the Husband’s income should be: $351,471.00, which she defines as his ordinary business income, W-2 income and pre-tax profit-sharing contribution. However, she further argues that the Husband’s income should be $450,000.00 if you add back additional expenses such as a shareholder loan and rent deductions. In his opposition, the Husband argues that the Wife incorrectly adds back income to him. By way of example, he explains that there was a personal loan that he is required to pay back to his company, and it is not a deduction. He also states, and the tax return demonstrates, that he only funded his profit-sharing plan with $10,000.00, not $21,000.00. See e-file document # 50. Except for the contribution to the profit-sharing plan in the amount of $10,000.00 in 2019, the Court will not add back any additional expenses to the Husband’s for the purposes of this application.4 Accordingly, for the purposes of this application, the Wife’s income is defined as $295,454.75 ($321,250.00 less $16,479.60 (12.4 percent self-employment Social Security tax up to $132,900 for the 2019 tax year) less $9,316.25 (2.9 percent self-employment Medicare tax); and the Husband’s income is defined as $315,153.31 ($251,348.00 ordinary business income less $16,479.60 (12.4 percent self-employment Social Security tax up to $132,900 for the 2019 tax year) less $7,289.09 (2.9 percent self-employment Medicare tax) plus $84,000.00 of W-2 income less FICA of $6,426.00 plus $10,000.00 (profit-sharing contribution). EXCLUSIVE USE AND OCCUPANCY Prior to reaching the financial relief requested in the parties’ respective motions, the Court will address the Wife’s request for exclusive use and occupancy of the marital residence located at 117 Northside Drive, Sag Harbor, New York (Branch 1. of her cross application). This Court is empowered under Domestic Relations Law §234 to award one spouse temporary exclusive use of a marital residence “where title to such property is at issue in a matrimonial action”. See Krause v. Krause, 112 A.D.2d 862, 864 (1st Dept. 1985). The progeny of cases on this issue have held that is a provident exercise of discretion to grant pendente lite exclusive use and occupancy when one party has voluntarily established an alternative residence and his or her return would cause domestic strife. See Taub v. Taub, 33 A.D.3d 612 (2d Dept. 2006); Amato v. Amato, 133 A.D.3d 695, 696 (2d Dept. 2015); and Mitzner v. Mitzner, 228 A.D.2d 483 (2d Dept. 1996). Moreover, an “order is appropriate only upon a showing that the relief is necessary to protect the safety of persons or property…” Amato, 133 A.D.3d at 696. The Wife argues when the Husband is present at the marital residence — on the weekends — the home is filled with tension and he treats her with “palpable disgust”. She further claims that he did not sit at the dinner table during Thanksgiving, disparages the Wife to the children and leaves dirty dishes on the counter. Further, the Wife argues the Husband has an alternative residence, to wit: the Manhattan apartment. The Husband opposes the application and submits that he attempts to avoid confrontation with the Wife when he is at the marital residence and it was the Wife who is the source of the stress in the home who has also resorted to calling the police. Here, the Wife has failed to demonstrate the need for an award of exclusive use and occupancy. The Husband did not establish an alternative residence; the Manhattan apartment was obtained in 2018 so that the Husband did not have to commute daily from Sag Harbor to Manhattan, which could take at least 2 hours each way. Further, the Wife has failed to demonstrate that an order of exclusive use of occupancy is necessary to protect the safety of persons or property. An argument, dirty dishes, or the Husband’s refusal to sit at a dinner table does not warrant an award of exclusive use and occupancy. Accordingly, the Wife’s application for exclusive use and occupancy is denied. CARRYING CHARGES Branch (1) of the Husband’s application seeks an order directing the Wife to pay 50 percent of the mortgage and carrying charges on the marital residence. Branch 5. of the Wife’s application seeks an order directing the Husband to continue to pay 100 percent of the carrying charges In his moving papers, the Husband submits that the parties used to deposit their incomes into the joint account and all household bills would be paid from there. However, on or about January 1, 2020, the Wife ceased depositing her income into the joint account and the Husband was forced to pay nearly all the parties’ expenses. The parties’ Statements of Net Worth have slightly different amounts as to the carrying expenses5, the Court will utilize the expense detailed in the parties’ moving papers: Mortgage: $5,891.00 HELOC: $2,313.00 Homeowner’s Insurance: $417.00 Homeowner’s Association: $21.00 Fuel Oil: $417.00 Electric: $417.00 Water: $85.00 Cable/internet/phone: $102.00 Alarm: $97.00 Landscaping: $167.00 Sanitation: $63.00 Extermination: $167.00 Pool/hot tub: $150.00 Both parties are required to maintain the marital residence during the pendency of a matrimonial proceeding. Judge v. Judge, 48 A.D.3d 424, 425-26 (2d Dept. 2008); and Brinkmann v. Brinkmann, 152 A.D.3d 637, 639 (2d Dept. 2017). The Court notes that during the pendency of a matrimonial action, the parties should share in the payment certain carrying charges, including the mortgage, taxes, and insurance equally. See e.g. Goldman v. Goldman, 131 A.D.3d 1107, 1108 (2d Dept. 2015). With respect to the utilities (defined as oil, electric, water, cable/internet/phone and alarm), however, the Husband resides at the marital residence for 3 days a week and the Wife resides for 7 days a week. Further, the Wife will also receive an award of child support, discussed infra, a portion of which is for the utilities for the parties’ children. Therefore, an unequal share of the utility payments is equitable, to wit: 75 percent to the Wife and 25 percent to the Husband. The utilities amount to $1,118.00 and the remaining carrying charges and expenses detailed above amount to $9,189.00 per month. The Wife’s obligation would be $5,433.00 per month ($838.50 for utilities and $4,594.50 for the remaining carrying expenses) and the Husband’s obligation would be $4,874.00 ($279.50 for utilities and $4,594.50 for the remaining carrying expenses). Based upon the child support awarded to the Wife, discussed infra, the Husband is directed to continue to pay 100 percent of the carrying charges, including the utilities, on the marital residence, as listed above. TEMPORARY CUSTODY The Wife further seeks custody of the parties’ children, to wit: M.D., born January 30, 2012 and J.D., born June 17, 2013. There is no dispute that the children currently reside with the Wife at the marital residence a majority of the time. Therefore, the Wife shall have temporary residential custody for child support purposes only. However, the Court is unable to resolve custody without the benefit of a full hearing and same shall be referred to trial. CHILD SUPPORT In Branch 3. of the Wife’s application, she is requesting $9,450.00 per month in temporary child support. In accordance with Domestic Relations Law §§240 (1-b)(b) and (1-b)(c), the calculations are as follows: The Wife’s income, as calculated infra, for child support purposes is $295,454.75. The Husband’s income, as calculated infra, is $315,153.31. The combined parental income is $610,608.06. Applying 25 percent to the combined parental income up to the statutory cap of $154,000.00 yields a total parental support obligation of $38,500.00. The Husband’s pro-rata share of said sum (51.6 percent) is $19,866.00 ($1,655.50 per month) and Plaintiffs pro-rata share of said sum (48.4 percent) is $18,634.00. The Wife argues that this Court should award child support over the statutory cap. This Court is not required to strictly apply the CSSA standards and guidelines when awarding pendente lite child support. See Kaufman v. Kaufman, 131 A.D.3d 939, 943 (2d Dept. 2015). Here, in light of the instant facts and circumstances, including the parties’ respective incomes, the children’s standard of living if the parents did not separate, the parties’ living arrangement and the directive for the Husband to pay 100 percent of the carrying charges, the Court finds that the amount of child support pursuant to Domestic Relations Law §§240 (1-b)(b) and (1-b)(c) up to the statutory cap of $154,000.00 is unjust and inappropriate. Therefore, this Court would apply a cap to the parties’ combined parental income of $350,000.00. See e.g. Beroza v. Hendler, 109 A.D.3d 498. Applying 25 percent to the combined parental income up to a cap of $350,000.00 yields a total parental support obligation of $87,500.00. The Husband’s pro-rata share of said sum (51.6 percent) is $45,150.00 ($3,762.50 per month) and Plaintiffs pro-rata share of said sum (48.4 percent) is $42,350.00. The Wife would have been awarded a total of $3,762.50 per month in temporary child support. Here, the Husband was directed to pay 50 percent of the cost of the mortgage, HELOC, real estate taxes, homeowner’s insurance and other carrying charges and 25 percent toward the cost of some utility expenses, pendente lite, for a total of $4,874.00 per month. To avoid a double shelter allowance, the Husband is entitled to a credit against child support for a portion of his responsibility of the payments made towards those expenses. See e.g. Higgins v. Higgins 50 A.D.3d 852, 857 N.Y.S.2d 1721 (2d Dept. 2008); and lacono v. Iacono, 145 A.D.3d 972, 44 N.Y.S.3d 495 (2d Dept. 2016). Basic child support is comprised of food, shelter and clothing. See id. Therefore, since one-third of the Husband’s temporary child support obligation will account for shelter, one-third of the amount of temporary child support as calculated above shall be reduced6. Accordingly, the Wife would have been awarded a total of $2,509.58 per month in temporary child support. However, given the fact that the Husband is paying 100 percent of the carrying charges, which includes the Wife’s $5,433.00 responsibility, and the fact that the children’s reasonable needs will be met, the Court declines to award direct temporary child support to the Wife. Branch (2) of the Husband’s seeks an order directing the wife to contribute to 50 percent of the cost of the family’s health insurance. However, the Husband does not provide the cost of the difference between an individual and family plan; his Statement of Net Worth simply lists a total amount of $2,809.00. Moreover, it is unclear whether the health insurance is a pre or post tax expense. Further, in light of the automatic orders, the Husband shall maintain the family’s health insurance and continue to pay the premiums. See Domestic Relations Law §236 (B)(2)(b)(1-5) read in tandem with 22 N.Y.C.R.R. 202.16-a. Branch (3) of the Husband’s application seeks an order directing the Wife to pay 50 percent of the children’s unreimbursed medical expense. Branch 4. of the Wife’s application seeks an order directing the Husband to pay his pro-rata share of the children’s unreimbursed medical expenses. Given that the Wife would still owe the Husband $2,923.42 per month for her share of the carrying charges, the Court directs that the Wife pay 100 percent of the children’s unreimbursed medical expenses and childcare expenses. With the exception of the payment of Hebrew School and camp, which shall be the Wife’s responsibility pendente lite, Branch 5. of the Wife’s application is denied. See e.g. Domestic Relations Law §§240 (1-b)(b)(4)-(5). COUNSEL FEES Branch 7. of the Wife’s application seeks an award of $20,000.00. The Wife relies on Domestic Relations Law §237 (a) and the long-standing case law in our jurisdiction in support of her request for interim counsel fees. In support of her application, the Wife argues, inter alia, that she is entitled to counsel fees because the Husband’s application was unnecessary and serves as a waste of their resources. It is well settled that an award of counsel fees is within the sound discretion of the court. The issue of counsel fees is controlled by the equities and circumstances of each case. See Nicodemus v. Nicodemus, 98 A.D.3d 604 (2d Dept. 2012. Additionally, an award of interim counsel fees is warranted where there is a significant disparity in the financial circumstances of the parties. See Prichep v. Prichep, 52 A.D.3d 61 (2d Dept. 2008). Here, the parties’ incomes are nearly identical. Further, the Court finds, given the circumstances of this case, that both applications were unnecessary and quite frankly, a waste of the parties’ resources. The Court also notes that it spent substantial time, and several court conferences, to attempt to assist the parties in resolving this application, to no avail. Therefore, the Wife’s request for counsel fees is denied. Accordingly, it is hereby ORDERED that Branches (1) and (3) of the Plaintiffs application are decided pursuant to terms of this Decision and Order; and it is further ORDERED that Branch (2) of the Plaintiffs application is denied for the reasons set forth herein; and it is further ORDERED that Branches 1. 4., 6. and 7. of the Defendant’s application are denied for the reasons set forth herein; and it is further ORDERED that Branches 2. and 3. of the Defendant’s application are decided pursuant to terms of this Decision and Order; and it is further ORDERED that all relief requested not specifically addressed herein is denied. The foregoing constitutes the Decision and Order of this Court. Dated: May 7, 2021
