Within weeks after entering a temporary support stipulation, the husband in a Kings County divorce action, resigned from his employment as a police officer with the New York City Police Department (NYPD). He moved to Georgia and entered the police academy as an entry-level officer at $38,000.00 per year, a more than 50% reduction of his $89,000.00 NYPD annual income.

In his May 30, 2012 decision in Darby v. Darby, Supreme Court Justice Jeffrey S. Sunshine determined whether to impute income to the husband when deciding the wife’s request for additional pendente lite counsel fees.

The parties were married on May 5, 2000. The parties have 4 children under 11 years of age.

At the preliminary conference on September 12, 2011, the parties stipulated that the husband would pay pendente lite legal fees to the wife’s attorney of $5,000.00. On November 16, 2011, the parties entered into another stipulation under which the husband agreed to pay the wife temporary support of $1615.40 bi-weekly.

With his subsequent NYPD resignation and move to Georgia, the husband began to default in his obligations immediately. The wife moved to hold the husband in contempt for failure to pay the stipulated amount of support, also requesting security, a money judgment, and an additional $20,000.00 in interim counsel fees.

The husband did not dispute that he unilaterally reduced his annual income by almost $50,000.00 when he voluntarily resigned from his employment with NYPD and moved to Georgia to enter the Dekalb County police academy as an entry-level officer;. He contended that his move was motivated by a decision to change career paths and not by a desire to reduce his income available for child support or to avoid paying maintenance.

Dekalb PD.jpgNevertheless, the husband argued that he should not be responsible for the pendente lite support obligation to which he agreed because he now earned only $1,417.38 bi-weekly. This was less than his $1,765.40 bi-weekly support obligation under the parties’ so-ordered stipulation.

The husband told the Court that he intended, in the future, to seek a second job in order to meet his pendente lite support obligations. However, he advised, he could not find a second job until his Georgia police academy training and a one-year probationary period was completed.

After presenting the current state of the law on pendente lite counsel fees, Justice Sunshine found the husband’s arguments “wholly unpersuasive.” The husband’s current financial situation was a direct result of his willful premeditated and purposeful decision, after commencing this divorce action, to leave his employment and relocate and begin a new career earning less than half of what he earned in New York.

This Court will not allow the husband to control this litigation or attempt to financially restrain the wife’s ability to participate meaningfully in this litigation by his self-serving claim that he is unable to pay, particularly under the facts and circumstances presented here.

Justice Sunshine noted that the husband’s actions forced the wife to incur additional counsel fees to enforce the parties’ stipulation. Additionally, the Court noted that the husband used tactics to delay the litigation: he repeatedly failed to appear at scheduled court appearances claiming that he was unavailable to appear because of his police academy attendance in Georgia.

Litigants are free to chart their own course in many aspects of a matrimonial proceeding; however, the Court will not permit the husband to utilize the financial consequences of his decision to start a divorce action, to change career paths and to relocate to control the wife’s ability to seek judicial relief.

Regardless of the recent reduction in income, the husband continued to be the monied spouse. The wife was not employed outside of the home. She was a full-time care-giver and mother to the parties’ four young children.

Justice Sunshine rejected the husband’s argument that he could commence a divorce proceeding, negotiate and agree to a pendente lite support obligation and then leave his wife and four young children behind in order to take an entry-level job in another state.

The husband’s purposeful and foreseeable reduction in income should not be a basis for him to refuse to contribute to the non-monied spouse’s counsel fees. . . . The husband shall not be permitted to control this litigation by controlling the purse-strings.

The Court found that the wife had demonstrated that she incurred counsel fees in proportion to the sum she requested. Justice Sunshine granted the wife an additional interim award of legal fees in the sum of $7,500.00.

The husband was represented by Yvonne E. Gardener; the wife was represented by Angela Scarlato, both of Brooklyn.