Going farther than simply holding that the lower court temporary support award was inadequate, the Appellate Division, Second Department, in its September, 2015, decision in Kaufman v. Kaufman, discussed the detailed decision necessary to deviate from presumptive temporary maintenance and child support formulas. Doing so, the court reversed the May 15, 2013 order of Supreme Court Justice Edward A. Maron and remanded the matter for new determinations. The appellate court also substantially increased the interim counsel fee award. Domestic Relations Law § 236(B)(5-a) [amended after this decision], sets forth formulas for courts to apply to the parties’ reported income in order to determine the presumptively correct amount of temporary maintenance. “In any decision made pursuant to that section, the lower court shall set forth the factors it considered and the reasons for its decision.” “[A] court may deviate from the presumptive award if that presumptive award is unjust or inappropriate.” Under such circumstances, the court must “set forth, in a written order, the amount of the unadjusted presumptive award of temporary maintenance, the factors it considered, and the reasons that the court adjusted the presumptive award of temporary maintenance.”

Additionally, when a court is unable to perform the needed calculations as a result of being “presented with insufficient evidence to determine gross income, the court shall order the temporary maintenance award based upon the needs of the payee or the standard of living of the parties prior to commencement of the divorce action, whichever is greater” (Domestic Relations Law § 236[B][5-a][g]).

Justice Maron should have been provided with the parties’ 2011 tax return in making his decision. However, that return had not been filed by the time the motion was submitted. The husband claimed that he had not filed a tax return for 2011 because the wife had unreasonably refused to execute it in order “to pigeon hole [him] into the most lucrative year [he] has ever financially realized, to wit: 2010.” The wife had questioned why the preparation of the 2011 tax return took so long and why the husband declined to use the same accountant that he had used in prior years to prepare the return.

Justice Maron determined that the husband’s adjusted gross income was $522,729, basing that upon the gross annual income of $774,729, reflected in the husband’s 2011 K-1 statement, less federal and state taxes reported by the husband. The wife argued this was error: that when establishing the husband’s gross income, Justice Maron improperly relied upon the husband’s unfiled 2011 K-1 statement and the affidavit of an employee of the husband’s law firm; improperly deducted alleged 2012 federal and state income taxes; and failed to include approximately $200,000 in perquisites that the husband received from his law firm.

The Second Department held there was insufficient evidence to make an accurate determination of the husband’s gross income. There was no ability to confirm the husband’s gross income with a duly filed tax return. There was no affidavit from an independent accountant, but rather an affidavit regarding the husband’s earnings from the husband’s employee. The husband had an alleged drastic decrease in earnings at the time of the proceedings compared to his earnings in 2010.

Accordingly, the pendente lite maintenance award should have been based on the needs of the payee or the standard of living of the parties prior to commencement of this action, whichever was greater.

Justice Maron had determined that the needs of the wife and the parties’ children were sufficiently covered by a pendente lite award of $4,000 per month for maintenance and child support. However, the record demonstrated that prior to the commencement of this action, the parties had enjoyed an affluent standard of living which included, among other things, numerous vacations, luxury automobiles, live-in domestic help, an expensive home, and expensive clothing. That lifestyle was not sustainable on $4,000 per month.

Moreover, Justice Maron had expressly determined not to award the presumptively correct amount of pendente lite maintenance to the wife based on its conclusion that to do so would be “unjust and inappropriate.” That conclusion was reached in consideration of the expenses he ordered be paid by the husband directly, including all of the carrying charges related to the marital residence, as well as some other related expenses including, but not limited to, cell phones, cable TV, Internet service, gardening, tree maintenance, and swimming pool maintenance.

However, noting the direction to pay those other expenses was the only factor that Justice Maron expressly took into consideration, the Second Department held the decision was deficient in its failure to provide reasons for not considering any other factor, or to state what was determined to be the wife’s reasonable and necessary expenses.

With respect to pendente lite child support, Justice Maron neither calculated the presumptive amount of this award in accordance with the Child Support Standards Act (CSSA), nor explained the basis for its determination of this award. While the determination of whether to apply the CSSA to an application for temporary child support is left to the provident exercise of the court’s discretion,

if the formula is rejected, the statute directs that the court set forth, in a written order, the factors it considered—an unbending requirement that cannot be waived by either party or counsel.

Here, Justice Maron had stated that, in awarding pendente lite child support, it considered the guidelines contained in the CSSA, as well as the factors which permitted a deviation from the standard calculation, “such as the financial resources of the custodial and non-custodial parents and those of the children, the physical and emotional health of the children, and the children’s educational or vocational needs and aptitudes, as well as any of the non-monetary contributions that the parents will make toward the care and well-being of the children.” Justice Maron, however, had not provided any reason for declining to perform the calculation in accordance with the CSSA, nor express his consideration of the various factors enumerated in the CSSA. Ultimately, the decision failed to provide any explanation as to how the award was determined.

Again, the pendente lite child support award was an improvident exercise of discretion in light of the children’s prior standard of living and the great disparity between the parties’ financial positions.

The goal of child support is to continue the status quo pending the divorce and to satisfy the overwhelming need to maintain a sense of continuity in the children’s lives.

Accordingly, the matter was remitted for new determination of pendente lite maintenance; the calculation of the husband’s pendente lite child support obligation pursuant to the CSSA; and a new pendente lite child support award.

Should the court determine not to apply the CSSA, the determination shall include an explanation as to why the court declined to do so and the basis for the new award.

Finally, the appellate court increased the interim award of counsel fees from $25,000 to $75,000, considering the parties’ relative circumstances, including the disparity in the parties’ respective incomes, the already contentious nature of this matrimonial litigation, and the resulting likelihood that the litigation of this matter will be protracted.

An award of interim counsel fees ensures that the nonmonied spouse will be able to litigate the action, and do so on equal footing with the monied spouse. Such an award is appropriate to prevent the more affluent spouse from wearing down or financially punishing the opposition by recalcitrance, or by prolonging the litigation. If the playing field were not leveled by an award of interim counsel fees, a wealthy spouse could obtain the services of highly paid (and presumably seasoned and superior) matrimonial counsel, while the indigent spouse, essentially, would be relegated to counsel willing to take his or her case on a poverty basis. The Court of Appeals has recognized that “the realities of contentious matrimonial litigation require a regular infusion of funds” so as to prevent the accumulation of attorney’s fees.

David Mejias, Randi Milgrim, Katherine Lindo, and Ayesha Brantley, of Mejias, Milgrim & Alvarado, P.C., of Glen Cove, represented the wife. Anthony A. Capetola, of Williston Park, represented the husband.