In the first appellate decision to apply the October 12, 2010 temporary maintenance amendment to the Domestic Relations Law, it was held that the recipient’s share of marital residence carrying charges is within the temporary maintenance award, itself. It was improper to have the payor spouse pay carrying costs directly in exhange for a credit against income before calculating maintenance.
In the February 7, 2012 decision in Khaira v. Khaira, the Appellate Division, First Department, considered the breadth of D.R.L. §236B(5-a). No longer was the temporary (pendente lite) maintenance award used simply to “tide over the more needy party,” but rather to provide “consistency and predictability in calculating temporary spousal maintenance awards.” The amendment “creates a substantial presumptive entitlement.”
The First Department modified the April 1, 2011 order of New York County Supreme Court Justice Deborah A. Kaplan. In the case before it, Justice Kaplan had “properly followed the initial procedures” to determine that the presumptive temporary maintenance award would be $138,000.00 per year ($11,500.00 per month), at least based on the husband’s first $500,000.00 of income. Justice Kaplan, then, analyzed the reasonable needs of the wife and children after taking into account husband’s payment of the mortgage and health insurance and expenses. Justice Kaplan, then, awarded the wife $13,870.00 in monthly unallocated spousal and child support payments, in addition to requiring the husband to pay the $5,317.00 monthly mortgage payments and the family’s $855.00 monthly health care premiums and medical expenses. The award and expenses totaled $20,041.00 per month. Justice Kaplan, however, did not discuss the factors required by the amendment to be considered when making an award in excess of the formula applied to the first $500,000.00 of a spouse’s income.
Before remanding the issue to Justice Kaplan for redetermination, the First Department focused on the “suggestion” inherent in her decision “that the formula was intended to cover the support needs of the non-monied spouse, such as food and clothing, but not the cost of the mortgage payments for her residence.” However, because any specific reference to the carrying charges for the marital residence was absent from the temporary maintenance formula amendment, the First Department considered:
[It was] reasonable and logical to view the formula adopted by the new maintenance provision as covering all the spouse’s basic living expenses, including housing costs as well as the cost of food and clothing and other usual expenses.
The First Department noted that prior to the amendment, it was common to award support both in cash payments to the spouse as well as to third-parties. That practice was “not only eminently reasonable, but also the most expedient way of covering payment of the necessities, and protecting the home as a marital asset.” The “new approach” changes that, instead awarding “the amount that will cover all the payee’s presumptive reasonable expenses.”
The First Department did not rule out the possibility of a direct mortgage payment, but, as required by the statute, only after the analysis of income in excess of the $500,000.00 cap was made.
The impact of this decision is clear. However, it also reveals the lack of logic in the remaining support calculations required by the various support provisions.