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Motion Practice in Matrimonial Actions

PACE LAW SCHOOL

April 8, 2013 6:00 p.m.-9:00 p.m.

MOTION PRACTICE IN MATRIMONIAL ACTIONS

By:  Kathleen Donelli, Esq.

McCarthy Fingar LLP

11 Martine Avenue, 12th Floor

White Plains, NY 10606

(914) 946-3700

kdonelli@mccarthyfingar.com 

 

  1. I.                   Pendente Lite Motions:  To Move or Not to Move?
    1. A.       Introduction

A pendente lite motion seeks immediate, temporary relief while the matrimonial action is pending.  The relief sought can include temporary child support, temporary maintenance, direct payments of expenses (such as car payments, carrying charges for the marital residence, insurance premiums), counsel and/or expert fees, parenting issues, exclusive use and occupancy of the marital residence, or protective orders. Pendente lite motions are often filed upon the commencement of a divorce action or at or before the preliminary conference, but they can be brought at any time up to the time of trial.[1]

Filing a pendente lite motion should never be a knee-jerk reaction. Counsel should consider the following factors in deciding whether to file a motion for pendente lite relief:

  • Is the client’s situation an emergency?
  • Is the case likely to be heavily litigated or prolonged?
  • Is your adversary open to stipulating to pendente lite issues?
  • Is the motion likely to improve the client’s position, particularly since appeals of interim orders are seldom modified on appeal?
  • Is it worth the financial cost to the client?
  • What is the likelihood of success?
  • What are the possible long-term effects on the case?

The last two factors are the most problematic, because results are often unpredictable.  Even if you bring the motion and win, you may lose in the end because an overly generous interim order may harden the parties’ positions and make the negotiation of the final deal difficult or impossible.  An onerous order will likely remain in place for the duration of the case, which can be financially disastrous for one or both parties.

The Uniform Rules for matrimonial actions (22 NYCRR § 202.16) specifically provide that applications for pendente lite relief maybe considered at the preliminary conference (“PC”); see 22 NYCRR § 202.16(f)(2).  In fact, the Rules encourage that motions for interim support or counsel fees be made at the PC; see 22 NYCRR § 202.16(k)(1):  “Such motion shall be made before or at the PC, if practicable.”  However, do not expect to simply show up at the PC and request interim relief -- the Rules do not suspend the formalities of motion practice. 

In Westchester County, motion practice is governed by the Matrimonial Part Operational Rules (a copy is attached as Exhibit B) (the “Matrimonial Part Rules”).  The Matrimonial Part Rules require that in all pre-Note of Issue cases, unless the attorney believes that an emergency exists, permission to file a motion must be obtained via a “pre-motion conference” with a Court Attorney-Referee.  The rationale is to reduce the number of motions by giving the Court an opportunity to resolve the issues at the pre-motion conference – and it often works.

The best approach is to try to negotiate a stipulation covering interim issues.  At best, you will save your client a significant amount of money.  At worst, your efforts will be evidence of your good faith if you must make a pendente lite motion.

B.  Statement of Net Worth

            We usually provide potential clients with a blank Statement of Net Worth ("SNW") form at our initial consultation.  Next to the Separation Agreement or Stipulation of Settlement resolving parenting and financial issues, we consider the Statement of Net Worth the most important document in a matrimonial matter.  You will need your client's SNW for any pendente lite motion involving finances and at the PC.

C.  Applicable Rules

            The rules applicable to pendente lite motions in matrimonial cases are found in three places: the CPLR, the NYCRR and, sometimes, in the individual rules of the judge hearing the case. Never forget to check the individual judge's rules before you even so much as call chambers; the judge's rules might even prohibit such calls. Some judges require conferences before motions are made.  In Westchester, see Matrimonial Part Rules attached as Exhibit B.

            1.   The CPLR

            Article 22 of the CPLR is entitled "Stay, Motions, Orders and Mandates" and contains the fundamental rules applicable to all motions, regardless of the subject matter of the case. The basic rules are:

  • CPLR 2214 (a):  what a Notice of Motion must state
  • CPLR 2214 (b):  timetable for serving moving, answering and reply papers
  • CPLR 2214 ( c ):  what the Court must receive from the parties
  • CPLR 2214 (d):  order to show cause (in Court's discretion, not subject to same time constraints as noticed motions)
  • CPLR 2215:  cross motions; timetable (Caution: no right of reply)
  • CPLR 2217(b):  affidavit on ex parte motion (i.e., order to show cause) must state if there has or has not been a prior request for the same relief and, if there has, explain why a new application.

 

2.  The NYCRR

            a.         Certification of Papers. 22 NYCRR 130-1.1a is entitled "Signing of Papers".  This section pertains to all papers served in every kind of case, matrimonial or otherwise, and requires that every pleading, written motion and other papers, served on another party or filed or submitted to the court must be signed by an attorney.  By signing a paper, the attorney or pro se litigant is certifying that, to the best of his or her knowledge, information and belief, formed after a reasonable inquiry, the submission of the paper or the contentions contained in the paper are not frivolous as defined in 22 NYCRR 130-1.1(c).  22 NYCRR 130-1.1 defines "frivolous" conduct as being (a) completely without merit in law; or (b) designed to create delay or to harass; or (c) the assertion of false factual statements. See also 202.16 (e).

 

            b.         Briefs and Affidavits. 22 NYCRR 202.8(c) provides that "affidavits shall be for a statement of the relevant facts, and briefs shall be a statement of the relevant law."  Thus, attorney affirmations should not contain legal citations and arguments.

            c.         Matrimonial Rules.  22 NYCRR 202.16 is entitled "Matrimonial Actions; Calendar Control of Financial Disclosure in Actions and Proceedings Involving Alimony, Maintenance, Child Support and Equitable Distribution; Motions for Alimony, Counsel Fees Pendente Lite, and Child Support, Special Rules." The provisions relevant to motions are:

  • 202.16 (f) (2): At the preliminary conference, the court may consider applications for pendente lite relief. Be prepared to discuss, in detail, the merits of the issues. Some judges will try to "conference" the issue and avoid a motion. See also 202.16 (k) (1): "Such motion shall be made before or at the preliminary conference, if practicable."  Because of the Matrimonial Part Rules in Westchester, unless brought by Order To Show Cause, applications for pendente lite relief are usually made after the PC.[2]
  • 202.16 (k) (2): All motions for temporary support and counsel fees must have attached a statement of net worth. Failure to attach the statement of net worth is a fatal defect that cannot be cured in reply papers.  See Section I(B) above. 
  • 202.16 (k) (3): All motions for counsel, accounting and expert fees must contain a submission by the professional seeking fees explaining money received, work to be done and fee agreement.[3]
  • 202.16 (k) (4): For the purposes of the motion (not the balance of the case) any fact set forth in the moving party's statement of net worth that is not controverted in the responding party's statement of net worth or sworn affidavits is deemed to be true.
  • 202.16 (k) (5): In the court's discretion, non-compliance with any of the provisions of Sec. 202.16 may be the basis of the Court's either making inferences favorable to the adverse party or denying the motion outright, without prejudice to renewal upon compliance with the provisions of the section.

3.  The Individual Judge’s Rules    

Virtually every judge publishes his or her own rules. You can find them on the web at www. Courts.state.ny.us.  However, in Westchester County, the Matrimonial Part Rules, attached as Exhibit B, applies to all Judges in the Matrimonial Part. 

 

II.        Motions for Temporary Maintenance, Child Support, Exclusive Occupancy.

            A.   Temporary Maintenance

  1. Motions for pendente lite maintenance are governed by the Temporary Maintenance Guidelines (DRL §236 Part B(5)).  This law applies to all matrimonial actions commenced on or after October 12, 2010.  The Temporary Maintenance Guidelines:
  • set forth a formula for determining the presumptive amount of temporary maintenance awards based on the "payor's" CSSA income (plus rental income) up to $500,000;
  • Enumerates 19 Factors to be considered if income exceeds $500,000;
  • Enumerates 17 Factors to be considered if the Court deviates from the presumptive amount of temporary maintenance because it is "unjust or inappropriate."

 

            2.         Calculation of Temporary Maintenance Under DRL § 236 Part B (5-A)

            The calculation of income in accordance with the Child Support Standards Act (“CSSA”) is as follows[4]:

 

Payor’s Income minus FICA

(i.e., $____ $____ = $_______)                                                       $_______________

 

Payee’s Income minus FICA

(i.e., $____ $____ = $_______)                                                       $_______________

 

 

Temporary Maintenance is the lower of A or B: 

 

A.         30% of the Payor’s CSSA Income (up to $500,000) 

-       20% of the Payee’s CSSA Income. 

= Temporary Maintenance 

 

                        OR 

 

B.         Payor’s CSSA Income (up to $500,000) 

         Payee’s CSSA Income 

            = Total Spousal Income 

 

      (Total Spousal Income x 40%) – (Payee’s CSSA Income) = Temporary Maintenance

 

 

            3.      Pursuant to DRL §236 Part B(5), in determining the amount and duration of maintenance the court shall consider:

  1. the income and property of the respective parties including  marital property distributed pursuant to subdivision five of this part;
  2. the duration of the marriage;
  3. the age and health of both parties;
  4. the present and future earning capacity of both parties;
  5. the need of one party to incur education or training expenses;
  6. the existence and duration of a pre-marital joint household or a pre-divorce separate household;
  7. acts by one party against another that have inhibited or contribute to inhibit a party’s earning capacity or ability to obtain meaningful employment.  Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the Social Services Law;
  8. the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time  and  training  necessary therefor;
  9. reduced or lost lifetime earning capacity of the party seeking  maintenance  as  a  result of having foregone or delayed education, training, employment, or career opportunities during the marriage;
  10. the presence of children of the marriage in the  respective homes of the parties;
  11. the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continue to inhibit a party’s earning capacity;
  12. the inability of one party to obtain meaningful employment due to age or absence from the workforce;
  13. the need to pay for exceptional additional expenses for the child/children, including but not limited to, schooling, day care and medical treatment;
  14. the tax consequences to each party;
  15. the equitable distribution of marital property;
  16. contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career  or  career potential of the other party;
  17. the wasteful dissipation of marital property by either spouse;

xviii.  the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;

  1. the loss of health insurance benefits upon dissolution  of   the marriage, and the availability of medical insurance for the parties; and
  2. any other factor which the court shall expressly find to be just and proper.

 

4.         The following chart compares recent decisions in which court’s have applied the temporary maintenance statutory formula and deviated from the presumptive award. 

Deviated From Presumptive Award

Applied the Statutory Formula

N.F. v. A.E.F., NYLJ 1202587386964, (Westchester Sup. Ct.) (J. Christopher)

 

The Wife requested that the Husband pay $12,448.16 per month in non-taxable temporary maintenance and $5,208.33 per month in temporary child support.  The Husband requested that the court base its award on his projected 2012 income ($122,353) instead of the income on his 2011 joint income tax return ($406,894). The court based its award on the Husband's AGI on his last filed 2011 joint income tax return, in the amount of $406,894. The court held that the presumptive temporary maintenance award under the guidelines in the amount of $10,172 per month would be "unjust and inappropriate" and awarded the Wife $4,000/mo. temporary maintenance taxable to the Wife and $3,000/mo. temporary child support.  The court directed that the Husband (who resided in the marital residence with the Wife and two children) pay carrying charges on the marital residence, plus health and auto insurance, totaling approximately $10,000/mo.  The court denied Wife's request for Husband to pay children's add-on expenses, including tutoring, extracurricular and summer activities.  The Wife requested a pendente lite counsel fee award of $30,000, citing the Husband's dilatory conduct and the complexity of the case.  The Husband (an attorney) was appearing pro se, claiming he could not afford to hire counsel for himself, let alone pay the Wife's counsel fees.  The court awarded the Wife $15,000 attorneys fees.

G.R.P. v. L.B.P., 36 Misc. 3d 1217(A) (Monroe Sup. Ct. 2012) (J. Dollinger)

 

The court awarded temporary maintenance to the wife in the amount of $25,906 per year where the husband had resources available in the amount of $110,000, $75,000 from annual subsidies from his parents and $35,000 as imputed income. The husband does not have the income to support these payments but he does have assets to pay these expenses during the pendency of the divorce. In the absence of a job that will generate enough income, the husband may have to turn to his parents for the resources to pay his obligations where his parents have always provided that financial support to the couple.

Salman v. Salman, 53611/2011, 2012 WL 5048190 (Kings Sup. Ct. 2012) (J. Sunshine)

 

Based on the “husband's complete lack of candor with the court and his incredible and inconsistent sworn financial affidavits, tax returns and deposition testimony” the court cannot calculate the presumptively correct sum of temporary maintenance utilizing the temporary maintenance guidelines. Instead, the court deviated from awarding a presumptively correct sum and awarded an amount based on the needs of the payee and the standard of living of the parties prior to commencement of the divorce action.

Charasz v. Rozenblum, 95 A.D.3d 1057, 945 N.Y.S.2d 117 (2d Dept. 2012)

 

The lower court properly applied the new statutory formula set forth in DRL § 236 (B) (5-a) to determine an appropriate award of temporary maintenance pursuant to the wife's application for pendente lite relief, which was made in her separate divorce action, commenced after the effective date of the new statutory formula.  Interestingly, the court did not discuss why the statutory formula was properly applied.  Instead, it relied on the well established case law that "inequities in pendent lite awards are best remedied by a speedy trial … ."

Gaetano D. v. Antoinette D., 16888/11, 2012 WL 4748311 (Westchester Sup. Ct. 2012) (J. Connolly)

 

The court based its temporary maintenance award of $2,000 per month on wife's reasonable needs, and not the statutory presumptive obligation of pendente lite maintenance, in light of insufficient evidence to determine husband's gross income; parties' lifestyle and expenses set forth in net worth statements exceeded the income stated in their tax returns.  The temporary maintenance award was based on the standard of living established during the marriage, age and health of parties, earning capacity of parties, and reasonable expenses to maintain pre-divorce marital residence.

C.H. v. S.H., 34 Misc. 3d 1218(A), 950 N.Y.S.2d 490 (Schenectady Sup. Ct. 2012) (J. Versaci)

 

The guideline amount totaled $0 where the court projected the net annual incomes of the parties to be $54,000 for the Plaintiff and $68,000 for the Defendant.

E.J.L. v. K.L.L., 950 N.Y.S.2d 626 (Monroe Sup. Ct. 2012) (J. Dollinger)

 

The court reduced the presumptive temporary maintenance award of $19,349 to $10,000 per year because the sheer size of the presumptive award would result in a financial resource shift justifying the court's determination that the presumptive calculation would be unjust and inappropriate.  Unlike the court in Scott M, the court concluded that an analysis of the 17 factors listed in DRL §236B(5-a)(e)(1) was not required because the "resource shift" was sufficient to conclude that the presumptive award would be unjust and inappropriate.

S.B. v. G.B., 33 Misc. 3d 1212(A), 939 N.Y.S.2d 743 (N.Y. Sup. Ct. 2011) (J. Gesmer)

 

Where the husband's gross income was $862,451, the court applied the formula to $500,000 and concluded that the presumptive award of $12,500 was not unjust or inappropriate.

Liebman v. Liebman, 37 Misc. 3d 1224(A) (Queens Sup. Ct. 2012) (J. Packman Brown)

 

The held that the presumptive award in the sum of $6,337.70 monthly is unjust or inappropriate. Specifically, the Court adjusted the presumptive temporary maintenance award considering factor (q).  The statute is silent regarding whether the Court shall order the presumptive maintenance award in proceedings in which the payor spouse has agreed or is directed to maintain the mortgage and/or carrying charges on the marital residence. In the instant proceeding, it is undisputed that Plaintiff has maintained the carrying charges on the marital residence, including the mortgage, maintenance and insurance, in the sum of $1,739.91 monthly. Thus, the Court shall deduct the sum of $1,739.91 from Plaintiff's temporary maintenance obligation in the sum of $6,337.70. Therefore, Plaintiff's temporary maintenance obligation is the sum of $55,173.51 annually, or $4,597.79 monthly, or $2,122.05 bi-weekly, or $1,061.02 weekly.

 

H.K. v. J.K., 32 Misc. 3d 1226(A), 936 N.Y.S.2d 58 (N.Y. Sup. Ct. 2011) (J. Drager)

 

Where the Husband's income exceeded $1,000,000 and the Wife's income was $0, the court applied the guideline amount and held that some additional amount of maintenance was appropriate based on the Husband's income over $500,000 and that the additional amount was $5,050 each month, necessary for the Wife's rental payment. Accordingly, the court increased the presumptive temporary maintenance award from $150,000 to $210,600 per year.

 

Maddiwar v. Maddiwar, 37 Misc. 3d 1224(A) (Queens Sup. Ct. 2012) (J. Packman Brown)

 

Defendant's application seeking temporary maintenance is denied where the court finds that the presumptive award in the sum of $3,558.22 monthly is unjust or inappropriate. Specifically, the Court adjusts the presumptive temporary maintenance award considering factor (q).  The statute is silent regarding whether the court shall order the presumptive maintenance award in proceedings in which the payor spouse has agreed or is directed to maintain the mortgage and/or carrying charges on the marital residence. In the instant proceeding, Plaintiff has agreed to maintain the carrying charges on the marital residence, including the mortgage, real estate taxes and homeowner's insurance. The carrying charges on the marital residence total approximately $7,466.95 monthly. This amount exceeds the presumptive maintenance award. Moreover, the statute is silent regarding whether the Court shall order the presumptive maintenance award where the Court directs the payor spouse to pay temporary child support pursuant to CSSA. In the instant proceeding, this Court directed Plaintiff to pay the sum of $3,516.19 as temporary child support, in addition to the monthly carrying charges on the marital residence, in the sum of $7,466.95.

S.C. v. J.R.C., Jr., 31 Misc. 3d 1239(A), 930 N.Y.S.2d 177 (Nassau Sup. Ct. 2011) (J. Maron)

 

Husband’s gross income totaled $105,397 and Wife’s gross income totaled $34,000; the court imputed additional income of $10,000 to the Wife.  The court’s award of temporary maintenance in the sum of $14,529.49 per year, was the presumptive guideline amount.  Additionally, husband was required to contribute $300 per month to the carrying charges for the marital residence. 

 

Khaira v. Khaira, 938 N.Y.S.2d 513 (1st Dep't 2012)

 

Payor spouse's gross income must include his bonus and could not be based on net income, which was subject to being manipulated through deductions and deferred compensation.  The lower court incorrectly applied the presumptive guideline amount and then added the direct mortgage payment on top of that without providing the explanation required for deviating from guideline amount.

A.C. v. D.R., 32 Misc. 3d 293, 927 N.Y.S.2d 496 (Nassau Sup. Ct. 2011) (J. Falanga)

 

In keeping with the mandate of the statute but limiting its reach to only disposable income, the court deducted the carrying charges of $7,274 per month from defendant's income to yield the presumptive amount of temporary maintenance in the amount of $10,897 per month.

 

Osha v. Osha, 101 A.D.3d 481 (1st Dept. 2012)

 

There was no basis for disturbing the lower court's award of temporary maintenance when the lower court correctly applied the formula set forth in Domestic Relations Law § 236(B)(5–a)(c)(1). The court considered numerous statutory factors and found that the statutory presumptive or guideline amount of temporary maintenance of $1,959.86 per month was “unjust or inappropriate”.  The court set forth the amount of the unadjusted presumptive award, the factors it considered, and the reasons that it deviated from the presumptive award.

 

Jill G. v. Jeffrey G., 31 Misc. 3d 1209(A), 929 N.Y.S.2d 200 (Nassau Sup. Ct. 2011) (J. Janowitz)

 

The court awarded the presumptive maintenance award based on defendant's $500,000 annual income in the amount of $10,783.33 per month. The court did not find the presumptive amount to be unjust or inappropriate given the expenses set forth in the parties' Net Worth Statements and the settlement funds awarded to the parties’ child.

 

Woodford v. Woodford, 2012 NY Slip Op 07993 (2d Dept. 2012)

It is “reasonable and logical” to view the [temporary maintenance] formulas set forth in DRL §236(B)(5-a) “as covering all the spouse’s basic living expenses, including housing costs.”  (quoting Khaira v. Khaira, 93 A.D.3d at 200 (1st Dep’t 2012).  The court deleted the provision in the Suffolk County’s Supreme Court order that directed the husband to pay the wife “both temporary maintenance and 100% of certain carrying charges on the marital residence” and remitted the case to the Supreme Court for a new determination pursuant to DRL §236(B)(5-a) of those branches of the Wife’s motion for pendent lite relief as to maintenance and payment of the carrying charges on the marital residence. 

 

J.H. v. W.H., 31 Misc. 3d 1203(A), 930 N.Y.S.2d 175 (Kings Sup. Ct. 2011) (J. Thomas)

 

The presumptive amount of temporary maintenance in the amount of $26,708.26 per year would not be unjust or inappropriate after considering the parties’ expenses. 

 

Martin v. Buckley, 33 Misc. 3d 1234(A), 946 N.Y.S.2d 67 (Monroe Sup. Ct. 2011) (J. Fisher)

 

The court reduced the presumptive award from $20,156 to $8,000 per year.  The deviated from the guideline amount because “the income redistribution contemplated by the presumptive award at these disparate income levels simply strips the wage earning spouse of most of what he earns and simply gives it to the non-wage earning spouse without any reference to established need or merit.” Using plaintiff's yearly projected gross income of $77,878 and the wife's imputed gross income figure of $10,000, the court awarded maintenance of $8,000 per year.  In reaching this amount, the court considered that “defendant's expenses include $200/month or $2,400/yearly for cigarettes, a habit plaintiff should not be required to support, the additional fact that any final maintenance award is likely to be durational in this 9 year marriage, and because of the tax burden on plaintiff, and other carrying charges he must meet for the marital residence which he commendably maintains.”

Margaret A. v. Shawn B., 31 Misc. 3d 769, 921 N.Y.S.2d 476 (Westchester Sup. Ct. 2011) (J. Connolly)

 

The court awarded the presumptive temporary maintenance in the amount of $6,217.42 per month where the court imputed $248,698 income to the husband and $0 to the wife because the wife was a full-time mother and housewife during a less than four-year marriage and the parties’ had three children which included a five-year-old and three-year-old twins.

 

 

R.L. v. C.L., 33 Misc. 3d 1226(A), 941 N.Y.S.2d 540 (Rensselaer Sup. Ct. 2011) (J. Lynch) 

The court denied the Husband's request for presumptive temporary maintenance of $58,292 per year and awarded him $26,000 per year.  The court imputed $52,000 income to the Husband and further deviated from the presumptive award because the Wife maintained health insurance, paid the carrying charges and cared for the parties' 21-year old daughter who has Aspersers Syndrome.

Fraterrigo v. Fraterrigo, 2011 WL 5325731 (Albany Sup. Ct. 2011) (J. Teresi) *

The court awarded the Wife presumptive temporary maintenance in the amount of $156 per week.

Salai v. Salai, 34 Misc. 3d 232, 934 N.Y.S.2d 659 (Monroe Sup. Ct. 2011) (J. Fisher)

The court reduced the Wife's presumptive temporary maintenance award of $9,571 to $3,000 per month based on the parties' standard of living.

 

J.V. v. G.V., 33 Misc. 3d 1212(A), 939 N.Y.S.2d 740 (Nassau Sup. Ct. 2011) (J. Janowitz) 

The court reduced the Wife's presumptive temporary maintenance of $10,249 to $5,332 per month.

 

S.G. v. P.G., 32 Misc. 3d 1233(A), 936 N.Y.S.2d 61 (Nassau Sup. Ct. 2011) (J. Maron)

 

The court reduced the Wife's presumptive temporary maintenance award of $2,167 to $2,000 per month because the court directed the Husband to also pay the carrying charges.

 

Valentin v. Valentin, 32 Misc. 3d 1223(A), 936 N.Y.S.2d 62 (Queens Sup. Ct. 2011) (J. Jackman-Brown)

 

The court reduced the Wife's presumptive temporary maintenance award of $1,806 to $1,083 per month so that the Husband would have sufficient income to maintain his pre-divorce separate household.  The court also directed the Husband to pay $1,000 per month toward carrying charges for the marital residence.

 

C.K. v. M.K., 31 Misc. 3d 937, 923 N.Y.S.2d 817 (Rockland Sup. Ct. 2011) (J. Weiner)

 

The presumptive amount of temporary maintenance of $0 in favor of wife was unjust and inappropriate under temporary maintenance statute, so as to warrant an upward deviation to an award of $2,000 per month where the wife had been a stay at home mother throughout the marriage, her statement of net worth showed no income, and income “attributed” to wife from husband's business was a bookkeeping matter and was not income in the traditional sense.

 

 

Scott M. v. Ilona M., 31 Misc. 3d 353, 915 N.Y.S.2d 834 (Kings Sup. Ct. 2011) (J. Sunshine)

 

The presumptive amount of temporary maintenance was unjust and inappropriate warranting a deviation because under the formula, the shift in resources from the payor spouse to the payee spouse resulted in plaintiff having a substantial reduction in resources and left him unable to maintain his pre-separation household.  However, the court concluded that the resource shift was not a basis upon which to deviate from the presumptive award.  Instead, the court was required to consider the 17 factors listed in DRL §236B (5-a)(e)(1) to determine if the presumptive award was unjust and inappropriate.  After considering these factors, the court reduced the presumptive award of temporary maintenance from $3,097 per month to $2,055 per month.

 

 

 

            B.   Temporary Child Support

                        1.         The Child Support Standards Act does not strictly apply to temporary orders of child support as it does in final orders. The structure of temporary child support is entirely within the discretion of the Court. Rizzo v. Rizzo, 163 A. D.2d 15, 558 N.Y. S.2d 12 (1st Dept 1990).

 

            C.   Temporary Custody

                        1.         Ex parte orders of temporary custody are rarely granted. Good practice dictates that opposing counsel be given notice, however brief, that you intend to present an Order to Show Cause requesting ex parte relief.

                        2.         If the situation is serious and requires intervention before the return date of the Order to Show Cause, consider requesting the ex parte appointment of a law guardian.

                        3.         The general rule is that temporary orders of custody and visitation should not be granted without a hearing.  Hizme v. Hizme, 212 A.D.2d 580, 622 N.Y.S.2d 737 (24 Dept. 1995); Alberts v. Alberts, 168 A.D.2d 1004, 565 N.Y.S.2d 945 (4th Dept. 1990).

 

            D.    Restraints

                        1.         The purpose of restraining orders on assets in a matrimonial action is to preserve the status quo of marital property pending equitable distribution, with the necessity for such order demonstrated by proof that the spouse to be restrained is attempting or threatening to dispose of marital assets so as to adversely affect the movant's ultimate rights in equitable distribution.  Kroteya v. Kroteya, 170 A.D.2d 371, 566 N.Y.S.2d 265 (1st Dept. 1991).

2.         Effective as of October 13, 2010, DRL §236 provides that upon service, each spouse is bound to follow the Notice of Automatic Stay.  A copy of the Notice of Automatic Stay is attached as Exhibit A.  Violation of the Notice of Automatic Stay is subject to contempt of court. 

                        3.         DRL Sec. 234 authorizes a Court to issue pendente lite injunctive relief in a marital action without requiring the movant to make the requisite showing normally required by CPLR Article 63: irreparable harm and a likelihood of success on the merits However, a prerequisite to the issuance of such an order is a showing by the movant that the party to be restrained is attempting or threatening to dispose of marital assets so as to adversely affect the movant's ultimate rights in equitable distribution. Loderhose v. Loderhose, 216 A. D.2d 275, 627 N.Y.S.2d 453 (2d Dept. 1995).

                        4.         A preliminary injunction pursuant to DRL Sec. 234, aimed at the preservation of marital assets pending equitable distribution, is available upon a showing of proper cause, which includes an admission of such party that there was a conversion and/or dissipation of marital assets or a showing that money was spent in a manner that, to a neutral party, may be regarded as improper or questionable.  Maillard v. Maillard, 211 A.D.2d 963, 621 N.Y.S.2d 715 (3d Dept 1995).

                        5.         It is error for the Court to issue sua sponte a preliminary injunction restraining a party from transferring or encumbering property other than in the course of ordinary business, as due process requires that the party so enjoined receive notice that the court will consider such a remedy. Holmes v. Holmes, 151 AD.2d 911, 542 N.Y.S.2d 884 (3rd Dept. 1989); Monroe v. Monroe, 108 A.D.2d 793, 485 N.Y.S.2d 310 (2d Dept. 1985).

 

            E.   Exclusive Use and Occupancy

                        1.         The movant must demonstrate that a directive for the exclusive possession of the marital home, pendente lite is necessary to protect the safety of him/her or that of the children or the safety of the property. Goodson v. Goodson. 135 A.D.2d 604, 522 N.Y.S.2d 182 (2d Dept 1987); Tessitore v. Tessitore, 140 A.D.2d 786, 527 N.Y.S.2d 888 (3rd Dept. 1988).

                        2.         Under appropriate circumstances, a court may award exclusive possession of the marital residence pendente lite where one spouse has caused domestic strife and has voluntarily established an alternative residence.  Annexstein v. Annexstein, 202 A.D2d 1062,609 N.Y.S.2d 132 (4th Dept. 1994).

                        3.         The general rule is that exclusive possession, pendente lite should riot be granted without a hearing.  Formato v. Formato, 173 A.D.2d 274, 569 N.Y.S.2d 665 (1st Dept. 1991).

 

            F.   Procedural Aspects

                        1.         DRL §236 requires that a pendente lite order for maintenance and child support be effective as of the date of application therefor.

                        2.         The date of the application is the date of service of the application.  Dooley v. Dooley, 128 A. D.2d 669, 513 N.Y. S.2d 167 (2d Dept. 1987).

                        3.         A temporary award is extinguished when the permanent award is made.  No order fixing arrears can be made after the permanent award.  McLaughlin v. McLaughlin, 143 A.D.2d 941, 533 N.Y.S.2d 581 (2d Dept. 1987).

                        4.         Where the underlying action is dismissed, a hearing has to be held if the financial award is to be continued. Sass v. Sass, 129 A. D.2d 622, 514N.Y.S.2d 257 (2d Dept 1987).

 

            G.        Credits and Adjustments

                        1.         A pendente lite award is retroactive to the date of application, with the payor being entitled to a credit against the retroactive sums for amounts voluntarily paid by him/her for maintenance and support during that period for which she/he has canceled checks or other similar proof of payment, including payments of real estate taxes on marital residence, charge accounts and car insurance paid for the payee. Mamet v. Mamet, NYLJ, 11/5/87, p.13, co1.2 (Sup.Ct., N.Y.Co.); West v. West, 151 A. D.2d 475, 542 N.Y. S.2d 265 (2d Dept. 1989).

 

            H.        Effect of Denial of Relief

                        1.         The fact that temporary maintenance was denied during the pendency of the action does not preclude an award of retroactive maintenance in the final order. DeBergalis v.  DeBergalis, 156 A.D.2d 335, 496 N.Y.S.2d 311 (4th Dept. 1989).

 

            I.          Discovery

1.         DRL § 236(B)(4) provides for compulsory financial disclosure.  While most disclosure may be had by the service of a notice, parties are sometimes forced to bring motions requesting a court to intervene in the pretrial process of discovery.  Article 31 of the CPLR provides the power to the courts to control disclosure. 

2.         Noncompliance with DRL §236 is punishable by sanction or any or all of the penalties prescribed in CPLR §3126.  A motion may seek any of the following relief under CPLR §3126: (i) an order deeming the issue to which the requested information is relevant resolved in favor of the opposing party; (ii) an order precluding the noncomplying party from supporting or opposing designated claims or defenses, or from introducing evidence relevant thereto; and (iii) an order striking out pleadings, staying further proceedings, dismissing the action, or rendering a default judgment. 

J.         Bars to Relief

                        1.         Prior Agreement.  Effect of an outstanding agreement on awards of temporary maintenance and counsel fees:

                        2.         General Rule. If there is an agreement between spouses, not void on its face, in existence, no maintenance or counsel fees are permitted until the agreement has been set aside. Demis v. Demis, 115 A.D. 2d 790, 548 N.Y.S.2d 67 (3d Dept. 1989).

a.         Two Exceptions to the General Rule:

 

i.          Where the agreement does not provide for temporary maintenance but, instead, support does not begin until after the entry of the divorce decree. Tregellas v. Tregellas, 169 A.D.2d 553, 564 N.Y.S.2d 406 (1st Dept. 1991); Pronp v.  Ergo, 112 AD.2d 868, 493 N.Y.S.2d 142 (1st Dept. 1985).

 

ii.         Where the party raising the agreement as a bar to a support award is not complying with the financial requirements of the agreement Andreini v. Andreini, 79 AD.2d 928, 434 N.Y.S.2d 407 , (1st Dept 1981); Peerce v. Peerce, 88 A D.2d 832, 451 N.Y.S.2d 139 (1st Dept. 1982); Ravel v. Ravel.  161 A D.2d 547, 556 N.Y. S.2d 51 (1st Dept. 1991).

 

 

 

III.       Motions For Accountants', Attorneys', Appraisers' and Other Experts' Fees

            A.   Experts' Fees

                        1.         DRL 237 provides the statutory authority for the Court to award counsel fees and expenses upon proper application.

                        2.         DRL 237(d) defines "expenses" to include accountant fees, actuarial fees, etc. It also codifies the requirements of Ahern v. Ahem by stating the four factors to be considered by the, Court in determining the propriety of an application for "expenses":

a.         The nature of the marital property involved;

b.         The difficulties involved, if any, in identifying and evaluating the marital property;

c.         The services rendered and an estimate of the time involved; and

d.         The applicants financial status.

                        3.         Thus, a proper application for expert fees must include an affidavit of the expert satisfying the four elements of DRL Sec. 237(4 Failure to set forth the required elements will result in the denial of the motion. Coppola v. Coppola, 129 AD.2d 760, 514 N.Y.S.2d 754 (2d Dept).

                        4.         The Matrimonial Rules provide the authority for the Court to appoint an expert to give testimony with respect to equitable distribution or custodial issues. The cost of such expert witness shall be paid by a party or parties as the court shall direct. 22 NYCRR Sec. 202.18.

                        5.         The Court may direct at the preliminary conference that a list of expert witnesses be filed with the Court within thirty days of the conference from which the Court may select a neutral expert to assist the Court. 22 NYCCR Sec. 202.16(f)(3).

                        6.         Upon any application for an award of counsel fees or appraisal/accounting fees made prior to the conclusion of the trial, the Court shall set forth in specific detail, in writing or on the record, the factors it considered and the reasons for its decision. 22 NYCRR Sec. 202.16(k)(7).

 

            B.        Attorneys' Fees

                        1.         The requirements and authority for the application for counsel fees in found in DRL Sec. 237(a) and 22 NYCRR Sec. 202.16(k)(3).  DRL § 237 creates a rebuttable presumption that counsel fees be awarded to the non-monied spouse.  The statute also provides that each party be adequately represented and that, where an award is made, that the award be made timely on a pendente lite basis so as to assure that there is adequate representation from the beginning of the case.  See footnote 3 on page 5.

2.         The Appellate Division, Second Department has acknowledged that delaying an award of counsel fees until after trial can compromise the ability of the non-monied spouse to retain quality legal representation to present his or her case, and unanimously held in Prichep v. Prichep, 858 N.Y.S.2d 667, 2008 N.Y. Slip Op. 04335 (2d Dep’t 2008):

                        3.         Sec. 202.16(k)(3) provides that

No motion for counsel fees shall be heard unless the moving papers also include the affidavit of the movant's attorney stating the moneys, if any, received on account of such attorney's fee from the movant or any other person on behalf of the movant, and the moneys such attorney has been promised by, or the agreement made with, the movant or other persons on behalf of the movant, concerning or in payment of the fee.

 

            4.         As a practical matter to avoid the uncertainty of an onerous counsel fee award if you represent the propertied spouse, consider making a voluntary contribution. Also, if the marital estate has liquid assets, consider making an advance partial distribution to the non-propertied spouse from which s/he can pay counsel fees.

            5.         Interim fee applications are usually determined on the basis of the papers submitted and without an evidentiary hearing.  The Second Department has ruled that an evidentiary hearing is not required prior to an award of interim counsel fees.  Isaacs v. Isaacs, 71 A.D.3d, 897 N.Y.S.2d 225 (2d Dept. 2010). 

6.         When making a fee application, submit an affidavit revealing billing rate, justification for the rate, professional standing and experience in the field. Describe in brief detail the work already done and that which you expect to do. Note if opposing counsel or the other spouse is difficult to deal with (be careful about how this is worded).  Argue the rough rule of equality: you should be paid at least as much as the propertied spouse paid his/her counsel.

Remember:  Under DRL §237(a) BOTH parties must disclose the attorneys' fees they have paid and/or incurred.

7.         In defending a fee application, attack opposing counsel's qualifications or the work done or estimated to be done. Argue that the request only serves to inflame the litigation, for money given is money spent. If the application is made near trial, argue that the fees should not be granted when the moving party may very well receive sufficient assets to pay his/her own fees at the conclusion of the case. Suggest that opposing counsel's fees, if granted, be paid at various points in the case to keep the case moving and assure that the work gets done.

 


[1] Effective as of October 13, 2010, DRL §236 provides that upon service, each spouse is bound to follow the Notice of Automatic Stay.  A copy of the Notice of Automatic Stay is attached as Exhibit A

[2] Under the Matrimonial Part Rules, Section E, paragraph 1, unless the attorney believes that an emergency exists, permission to file a motion must be obtained via a “pre-motion conference” with a Court Attorney-Referee.  Therefore, prior to the PC, you should notify the court by letter that there is an issue that needs to be addressed at the PC; if not resolved at the PC, you must obtain permission at the PC to bring your motion.

 

[3] There is a discrepancy between 202.16(k)(3) and DRL §237.  Rule 202.16(k)(3) specifies that the moving papers must include an affidavit from the movant's attorney disclosing attorneys fees that have been paid or promised to the movant's attorney whereas DRL §237 requires BOTH parties to disclose attorneys fees paid or to be paid.

[4] Under DRL §236(B)5-A(4)(B), income shall include income from income producing property.