The February 15, 2010 [sic] decision of Rockland County Supreme Court Justice Alfred J. Weiner in C.K. v. M.K., adds to what is shaping up to be a remarkable string of cases applying the 2010 temporary maintenance and counsel fee amendments to the Domestic Relations Law. The decision was published March 15, 2011, the same day as Margaret A. v. Shawn B. also applying the recent amendments. That case was the subject of my March 21st blog.
Here, the wife commenced her divorce action on October 13, 2010, the day after the effective date of these amendments and New York’s no-fault law.
The parties were married in 1988. The marital residence was now occupied by the wife and 20 and 17 year-old children, after the husband moved out last August.
The parties’ 2009 (last-filed) tax return showed adjusted gross income of $424,240, of which $155,818 was the husband’s W-2 income from his own business. Notably, $136,780 of the income was reflected on the wife’s W-2 income from the husband’s business (although she apparently did no work for that business). The wife listed herself as a part-time dog-walker. The remaining $131,642 in AGI is not described in the opinion.
At the December, 2010 Preliminary Conference the husband agreed to deposit $2,000 monthly to the wife’s account for child support, pay the martal residence mortgage, the family’s auto expenses, and to pay the expenses on the parties Pennsylvania vacation home which he would occupy exclusively. It was also agreed that the husband’s business would deposit $1,732.24 monthly to the wife’s account (I am advised by the husband’s counsel, Ostrer Rosenwasser, that this reflects $2,000 per month, less withholding). These temporary arrangements, however, did not resolve the wife’s motion.
Justice Weiner fillied in the temporary maintenance formula (D.R.L. §236B[5-a]) with the 2009 W-2 incomes of both parties. He found that doing so, the formula would result in an annual award of the lesser of $18,458 or negative $18,034: the guideline amount was $0.
However, as the wife’s W-2 income was only “attributed” to her and not actually received by her, Justice Weiner found that this application of the formula would be unjust and inappropriate. Instead, he awarded the wife $2,000 per month. The Court further awarded the wife another $2,000 per month in child support (the sum to which the husband had agreed at the P.C.) Finally, the Court awarded $10,000 in interim counsel fees.
Justice Weiner noted that “in calculating the sums herein awarded, the Court carefully considered the amounts the Defendant separately agreed to pay at the December 10, 2010 Preliminary Conference and he is hereby ordered to pay those amounts retroactive to that date.” Accordingly, it appears that in addition to the $4,000 per month in temporary maintenance and child support, the husband will also pay the marital residence mortgage, auto, and vacation expenses. Presumably, the husband’s business will continue to pay the wife her $2,000 ($1,732 net) per month.
Both Justice Weiner in this case, and Justice Francesca E. Connolly in Margaret A. v. Shawn B., applied the new formula to fictitious amounts. Justice Connolly used the husband’s $250,000+ 2009 income although the husband’s employment was terminated in October, 2010 while on track to earn less than $200,000 for the year.
Here, if the 2009 W-2 income was truly earned all by the husband, why not apply the formula making use of that fact? From the husband’s combined W-2 gross of $292,598 would be deducted the $6,622 FICA cap and $4,243 in Medicare taxes. Applying the formula (and assuming the wife had no dog-walking income) would result in an award of $84,520 per year ($7,043 per month). Using, then, the C.S.S.A. guidelines after subtracting the maintenance award, child support would be $49,303 per year ($4,109 per month).
Knowing whether the Court considered the resulting $11,152 monthly award unjust and inappropriate would provide guidance for counsel and litigants alike. Applying the formula to fictitious amounts does not; except to signal that when it comes to divorce, the courts [too!] engage in fictions.