In its August 19, 2015 decision in Hof v. Hof, the Second Department, almost matter-of-factly, addressed a number of pendente lite and pre-nuptial agreement issues.

To begin, the Court affirmed the determination of Suffolk County Supreme Court Justice John B. Collins, that after a hearing upheld the parties’ prenuptial agreement. By that agreement, at least in part, the parties had waived interests in each other’s pensions. Contrary to the wife’s contention, that mutual waiver was not unconscionable, and was not necessarily one-sided when it was made, as both parties had accumulated approximately three years in their respective pensions at that time. Moreover, the Court stated that the husband’s threat to cancel their wedding if the agreement was not signed did not establish duress.

The Second Department modified Justice Collins’ order insofar as it deviated from the presumptive temporary maintenance formula. Domestic Relations Law § 236(B)(5-a) sets forth formulas for the courts to apply to the parties’ reported income in order to determine the presumptively correct award of temporary maintenance.

Here, the Justice Collins had downwardly deviated from the presumptive award by awarding the wife the sum of only $1,500 per month in pendente lite maintenance. While a court may deviate from the presumptive award if that presumptive award is unjust or inappropriate, the Second Department here held, however, that it was not proper to so deviate. It was an insufficient basis to deviate that the husband “was maintaining the marital residence where he was living after the wife vacated the marital residence with the children, and the fact that the wife stayed home during a portion of the marriage to take care of the children.” Such did not render the presumptive award of pendente lite maintenance unjust or inappropriate. Accordingly, the Second Department held that it must modify the award of pendente lite maintenance to provide the wife with the presumptive award of $2,549.70 per month.

On the other hand, Justice Collins was not required to apply the Child Support Standards Act to determine the award of pendente lite child support. In that regard, any perceived inequity in the temporary child support award can best be remedied by a speedy trial, at which the parties’ financial circumstances can be fully explored.

Finally, the Second increased the interim award of counsel fees from $2,500 to $20,000, the full amount of counsel fees incurred by the wife to date related to the divorce issues. The husband was the monied spouse and, thus, there was a rebuttable presumption that the wife was entitled to an award of attorneys’ fees. At the time the wife moved for her award of attorneys’ fees, the attorneys’ fees she had already incurred amounted to approximately $25,000. Domestic Relations Law §237 does not provide for an award of counsel fees in actions to enforce or rescind prenuptial agreements, and approximately $5,000 of the $25,000 in fees that she actually incurred were attributable to challenging the prenuptial agreement. Therefore, at this juncture, the Second Department held the wife should be awarded interim attorneys’ fees in the sum of $20,000, rather than only $2,500.

Arnold B. Firestone, of Firestone & Breud, PLLC, of Commack, represented the wife. C. Donald Shlimbaum, of Shlimbaum & Shlimbaum, of Central Islip, represented the husband.

Calulator on 100sWhen one spouse is paying all the carrying costs of the home, it is appropriate to reduce the presumptive temporary maintenance formula award to the other spouse by half of those costs.

So held the Appellate Division, Second Department, in its May 20, 2015 decision in Su v. Su, affirming an order of Nassau County Supreme Court Justice Jeffrey Goodstein that directed a wife to pay of the expenses of the home in which the parties were residing while the action was pending plus temporary maintenance to the husband of $200 per month.

In the divorce action commenced by the wife, the husband moved for pendente lite relief seeking, among other things, temporary spousal maintenance in the sum of $4,500.15 per month and to compel the wife to pay all of the carrying costs associated with the marital residence, where both he and the wife continued to reside.

In his order, Justice Goodstein directed the wife to pay 100% of the carrying costs associated with the marital residence, totaling $5,003 per month.

Using the statutory temporary maintenance formula (Domestic Relations Law § 236[ B][5-a][c]), Justice Goodstein also calculated the husband’s presumptive award of temporary maintenance to be $2,057 per month, but found that “it would be unjust and inappropriate” to direct the wife to pay both all of the carrying costs associated with the marital residence plus the presumptive award of temporary maintenance. Therefore, the court downwardly deviated from that presumptive award of temporary maintenance, and awarded the husband the sum of $200 per month.

The husband appealed, contending that the Supreme Court erred in its method of calculating the presumptive award of temporary maintenance and in awarding him the sum of only $200 per month.

Here, the Second Department agreed that the “significant downward deviation from [the] presumptive award of temporary maintenance” was appropriate.

The formula to determine temporary spousal maintenance . . . is intended to cover all of the payee spouse’s basic living expenses, including housing costs of food and clothing, and other usual expenses. . . In addition, where both parties continue to reside in the marital residence and one party is ordered to pay the carrying costs, the payor spouse may be credited with half those costs.

Here, nearly all of the husband’s basic living expenses included in the presumptive award of temporary maintenance were already to be paid by so much of the order as directed the wife to pay 100% of the carrying costs associated with the marital residence, as the court calculated these carrying costs to include the monthly costs for the mortgage, gas, electricity, telephone, water, groceries, home entertainment, household repairs, appliances, laundry, gardening/landscaping, and snow removal.

Moreover, the appellate court noted, the husband failed to demonstrate that the pendente lite award of $200 per month would leave him unable to meet his financial obligations. Under the circumstances, the Second Department held that Justice Goodstein properly downwardly deviated from the presumptive award of temporary maintenance to award the husband the sum of $200 per month

Comment: Although the decision notes that the carrying costs totaled $5,003 per month, it is not clear whether each of the open-ended obligations were capped. Thus, requiring the wife to pay all of the bills for groceries, home entertainment, and repairs, etc., could be problematic. Party at the Su home: caviar and white truffles to be served.

Philip Sands, of Garden City, represented the wife. Thomas Weiss & Associates, P.C., of Garden City, represented the husband.

Gavel mainIn its February 18, 2015 decision in Dunleavy v. Dunleavy, the Second Department modified the order of Suffolk County Supreme Court Justice Carol Mackenzie by increasing the wife’s temporary maintenance award from $75 to $784.62 per week.

The Second Department noted that Domestic Relations Law § 236(B)(5-a) sets forth formulas for the courts to apply to the parties’ reported income in order to determine the presumptively correct amount of temporary maintenance. It further provides that the court shall order the presumptive award of temporary maintenance in accordance with the formulas, unless it finds that the presumptive award is unjust or inappropriate. If so, the court must set forth, in its written order, the enumerated factors it considered and the reasons it adjusted the presumptive award of temporary maintenance.

Here, Justice Mackenzie applied the statutory formulas set forth in Domestic Relations Law § 236(B)(5-a) and arrived at a presumptive award of $784.62 per week, but found that the presumptive award was unjust and inappropriate. The court awarded the wife only $75 per week in temporary maintenance, a 96% reduction of the presumptively correct award.

The appellate court held that the record did not support any reduction of the presumptively correct award, or otherwise lead to the conclusion that the presumptive award was unjust or inappropriate under the circumstances of this case.

While an appellate court should rarely modify a temporary maintenance award, here, we conclude that justice requires an award equal to the statutorily presumptive award.

The Second Department also held that Justice Mackenzie had improvidently exercised her discretion in awarding the plaintiff an attorney’s fee in the sum of only $2,500. Considering the parties’ relative circumstances, including the disparity in the parties’ respective incomes, and considering all of the relevant factors, the appellate court increased the attorney’s fee to the sum of $7,500.

Of interest here may also be the fact that Justice Mackenzie’s order was dated June 21, 2013 (the motion having obviously been made months before that). It thus took some 20 months for the wife’s temporary support to be increased.

Erik C. Howard, of Foster, Vandenburgh, & Riyaz, LLP, of Westhampton, represented the wife. Alan M. Wolinsky, of Wolinsky, Parnell & Montgomery, LLP, of Lake Ronkonkoma, represented the husband.

Is a wife entitled to formula temporary maintenance in a divorce action, merely because she is the less-monied spouse? No, says New York County Supreme Court Justice Matthew F. Cooper in his October 22, 2014 decision in Joseph M. v. Lauren J.

In this matrimonial action, the wife sought temporary custody of the parties’ child, as well as an order awarding her pendente lite maintenance, child support, and counsel fees. Although the custody applications were premature, the financial issues were ripe for determination.

In many ways, this case highlights the tension that exists when imposing a statutorily prescribed formula for awarding temporary maintenance on a determination that has traditionally been left to the sound discretion of a court.

The parties were married in 1997 and had one child, a daughter, born in 2009. The couple separated eight months after the child’s birth when, in May 2010, the wife left the marital residence in Yonkers to live with a man with whom she had been involved since before the pregnancy. The wife continued to reside with this man and was largely supported by him for almost four years. They recently stopped living together because their church objected to them continuing to cohabit while she was still married to the husband. As a result, the wife had been living for the last few months in a hostel in upper Manhattan.

Continue Reading Temporary Maintenance All But Denied to Wife Able to Work and Who Had Lived With Another Man

On the wife’s motion for temporary relief, Supreme Court, New York County Justice Deborah A. Kaplan in Lennox v. Weberman, awarded the wife tax-free maintenance of $38,000 per month, plus the wife’s unreimbursed medical expenses up to $2,000 per month, interim counsel fees of $50,000, and expert fees of $35,000.

By its February 26, 2013 decision, the First Department modified that order, on the facts, to provide that such pendente lite relief would be treated as an advance on the 50 percent of the parties’ joint funds to which the wife is entitled pursuant to the parties’ prenuptial agreement.

Notwithstanding that the wife had waived any claim to a final award of alimony or maintenance in the parties’ prenuptial agreement, Justice Kaplan was entitled, in her discretion, to award pendente lite relief in the absence of an express agreement to exclude an award of temporary maintenance.

As to the amount of the temporary maintenance award, the appellate court found that Justice Kaplan properly applied the new temporary maintenance formula set forth at Domestic Relations Law § 236(B)(5–a)(c)(2)(a). Specifically, Justice Kaplan had listed all 19 of the enumerated factors, explained how 7 of them supported an upward deviation to $38,000 per month from the $12,500 a month in guideline support, and found that $38,000 per month was not “unjust or inappropriate.”

Continue Reading Pendente Lite Award Prospectively Charged as an Advance Against Wife’s Share of Marital Property

Calulator on 100s 3.jpgTwo decisions last month of Queens County Supreme Court Justice Pam Jackman Brown provide insights on how courts might cope with the overlap of the statutory temporary maintenance formula and the payment of marital residence carrying charges.

Yesterdays blog reported upon the Second Department’s November 21, 2012 agreement in Woodford v. Woodford with the First Department in Khaira v. Khaira that the statutory temporary maintenance formula is intended to include the portion of marital residence carrying costs attributable to the nonmonied spouse.

In the November 5, 2012 decision in Liebman v. Liebman, Justice Jackman Brown balanced the factors presented by directing the husband to continue to make the marital residence carrying charge payments, but deducting the full amount of those charges from the presumptive maintenance formula.

The wife had sought an award of temporary maintenance based upon husband’s 2011 W-2 income. The wife also asked that in addition to the calculated temporary maintenance sum, the husband should be directed to continue to pay the maintenance, mortgage and carrying charges on the marital residence.

The Court found that the presumptive temporary maintenance award would be $6,337.70 monthly. However, under the facts presented, Justice Jackman Brown found that the presumptive award would be unjust or inappropriate. Specifically, the Court adjusted the presumptive temporary maintenance award after considering factor: (q) any other factor which the court shall expressly find to be just and proper.

The Court noted that 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 Liebman, it was undisputed that the husband had been paying the carrying charges, including the mortgage, maintenance and insurance, in the sum of $1739.91 monthly.

The Court deducted the sum of $1,739.91 from the husband’s presumptive monthly temporary maintenance obligation $6,337.70, and awarded the wife $4,597.79 monthly. The Court also directed the husband to continue to pay the mortgage, maintenance and insurance on the marital residence.

Continue Reading Temporary Maintenance Awards and Marital Residence Carrying Charges: Justice Jackman Brown Weighs In

Calulator on 100s 5.jpgThe statutory temporary maintenance formula is intended to include the portion of marital residence carrying costs attributable to the nonmonied spouse. So concluded the Appellate Division, Second Department in its November 21, 2012 decision in Woodford v. Woodford.

Accordingly, the appellate court vacated so much of Suffolk County Supreme Court Justice James F. Quinn’s July 15, 2011 order as directed the husband to pay both 100% of certain carrying charges on the marital residence and temporary maintenance to the wife. The issue was sent back to Justice Quinn for a new determination of pendente lite relief as to maintenance and payment of the carrying charges on the marital residence.

The Second Department quoted with approval from the First Department’s May 25, 2012 decision in Khaira v. Khaira, the subject of an earlier blog. The court also cited with approval former Justice Anthony Falanga’s opinion in A.C. v. D.R., also the subject of an earlier blog.

The Second Department concluded:

Indeed, it is “reasonable and logical” to view the formulas set forth in Domestic Relations Law § 236(B)(5–a) “as covering all the spouse’s basic living expenses, including housing costs” (Khaira v. Khaira, 93 AD3d at 200).

The husband was represented by D. Daniel Engstrand, Jr., Esq., of Doniger & Engstrand, LLP, of Northport.