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.

In her November 2, 2012 decision in Maddiwar v. Maddiwar, Justice Jackman Brown balanced the factors by denying temporary maintenance in its entirety.

The Court found that the husband had not been candid in presenting his income at approximately $39,000 annually. Instead, the Court imputed to the husband an income equal to the $14,062 in monthly expenses he claimed in his Net Worth Statement. In addition to the husband’s imputed annual income of $168, 744, the wife had investment income of $39,623, derived from investments.

First, as to child support, the Court made no deductions for FICA, Medicare or New York City taxes, as the parties failed to provide evidence of same. The Court applied the C.S.S.A. percentage for two children, 25%, to the entire combined parental income of $208,367. The Court directed the husband to pay $3,516.19 monthly [note: no comment was made concerning a “shelter allowance” being built into the C.S.S.A. formula].

The Court then calculated the presumptive temporary maintenance award at $3,558.22 monthly. However, again, Justice Jackman Brown found the presumptive award unjust or inappropriate. Factor (q) was again applied, here because of the husband’s agreement to maintain the carrying charges on the marital residence, including the mortgage, real estate taxes and homeowner’s insurance. These totaled $7,466.95 monthly. This amount exceeded the presumptive maintenance award.

Moreover, the Court noted the statute was also 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 C.S.S.A. The Court was directing the husband to pay $3,516.19 as temporary child support, and monthly carrying charges of $7,466.95. The Court noted that both parties each had access to assets in excess of one million dollars in savings accounts, securities and bonds. Moreover, the Court noted that the wife had been able to meet her monthly expenses without the contribution from the husband. Her Net Worth Statement indicated that she had no liabilities and minimal credit card debt.

In both cases, Justice Jackman Brown considered the claims of the parties tempered by an analysis of available data. Reality checks were undertaken in each case: how have the parties been living, and what would be the effect of blind adherence to the C.S.S.A. and temporary maintenance formulas?

Other aspects of pendente lite relief were at issue in each case. Reasonable minds might differ on the particular balances struck. However, the effort to reach those balances was shown and must be applauded.

In Liebman, Martin Hirsch, Esq., of Flamhaft Levy Hirsch & Rendeiro LLP, of Mineola represented the husband; Stanley M. Nagler, Esq., of New York City, represented the wife.

In Maddiwar, Robert J. Gursky, Esq., of Kew Gardens represented the husband; Andrea Seychett Schear, Esq., of Melville, represented the wife.