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.
The husband immigrated to the United States from Ireland in 1984 and began working as a handyman. He was currently a property manager of an office building in midtown Manhattan, earning an annual salary of $150,880. The husband continued to reside in the marital residence in Yonkers, and had been voluntarily paying the wife $650 per month in support since their separation, intended by him to be used by the wife for the child’s needs when the child was with her.
The wife had a Bachelor’s degree from the University of Manchester, in England. During the marriage, from 1999-2005, she worked at Willner Chemists, a nutrition-focused pharmacy in Manhattan. The wife also earned a Master’s degree in Human Nutrition from the University of Bridgeport in 2003, while continuing to work full time. She stopped working in 2005, gave birth to the parties’ child in 2009, and never resumed employment.
In the years leading up to her separation from the husband, the wife became increasingly involved with her church and began dedicating more and more time to anti-abortion activities. It was through the church and its activities that she became involved with the man with whom she had been living.
Although the parties separated in 2010, the husband did not commence this action for divorce until 2013. The wife did not file her pendente lite motion until July 15, 2014, over four years after she left the marital residence.
Justice Cooper denied the wife’s request for temporary child support. Only the deemed custodial parent (the parent with the child for the majority of the time) may be awarded child support. Determing the identity of the deemed custodial parent is to be determined on the basis of overnights. Based solely on the actual amount of overnights that the child spent with each party, Justice Cooper concluded that the husband was the custodial parent. Accordingly, the wife’s request for temporary child support was denied.
With respect to the wife’s application for temporary maintenance, Justice Cooper noted that in 2010, the New York State legislature amended the Domestic Relations Law to create a rigid formulaic approach to calculating temporary maintenance. Courts must now arrive at a presumptive award of temporary maintenance by first determining the parties’ incomes based on the parties’ most recently filed tax returns and in accordance with the definition of income set forth in the Child Support Standards Act. After this determination is made, the court must perform a series of calculations using those figures. The final number that is derived through this process is the presumptive award. Deviation from the presumptive award, whereby a court orders the higher-income spouse to pay the lower-income spouse a greater or lesser amount, must be done according to a series of factors, and only in a written decision.
Using this prescribed method, Justice Cooper determined the presumptive award of temporary maintenance to be $3,506 per month.
The application of the formula significantly erodes the well-settled principle that the “determination of maintenance is within the sound discretion of Supreme Court upon consideration of the relevant factors enumerated in Domestic Relations Law § 236B(6)(a) and the parties’ pre-divorce standard of living.” Nevertheless, the statute does not entirely divest a court of the ability to fashion an award of temporary maintenance that differs from the presumptive award.
The court may deviate from the presumptive award if it determines that the amount is unjust or inappropriate after having considered 17 specified factors. Although the factors appeared to Justice Cooper to have been drafted with an eye towards permitting an upward deviation — i.e., awarding the payee spouse more than the presumptive amount — they must still be read as permitting a downward deviation as well. Whether the deviation is upwards or downwards, the court must restrict its analysis to the statutorily enumerated factors and explain its reason for deviating in a written decision.
Justice Cooper found two of the statutory factors especially relevant. The first was “the earning capacity of the parties.” Here, in the more than four years since the wife left the marital home, the wife made absolutely no attempt to re-enter the workforce. Instead, she proclaimed that it was her choice to do volunteer work rather than earn an income.
Moreover, rather than teaching people about health and nutrition on an unpaid basis while seeking employment elsewhere, the wife spent her days, including many of her days with the child, outside of a Planned Parenthood health clinic, praying for patients and attempting to convince them not to obtain abortions.
The wife, of course, is free to dedicate herself to whatever causes she wishes so long as she does not involve the child over the husband’s reasonable objections or if such involvement is not otherwise contrary to the child’s best interests. But by dedicating herself to church and anti-abortion related activities, while at the same time demanding that the husband support her, the wife is in effect seeking to have the husband subsidize those activities. Moreover, she is purposefully reducing her ability to be self-supporting, or at least to contribute towards her own support, by choosing not to take payment for health and nutrition services she provides, and by spending her days protesting outside of Planned Parenthood rather than obtaining or seeking to obtain meaningful employment.
The second factor Justice Cooper found relevant was the “the existence and duration of a pre-marital joint household or a pre-divorce separate household.”
For the past four years the wife lived with and was supported by another man. Because of this relationship, she was able to live comfortably in an upscale neighborhood in Manhattan. She traveled extensively across the country and abroad.
Taking into consideration the relevant statutory factors, the court found ample reason to downwardly deviate from the presumptive award of $3,506 per month.
However, laudable the purpose of the temporary maintenance guideline may be in theory — to bring consistency and predictability to the process — it cannot and should not be used to impose an obligation that is unjust and inappropriate.
Justice Cooper found that that it would be unjust and inappropriate if the husband, who was by no means wealthy and is the parent solely responsible for the financial support of the parties’ young child, were required to pay the presumptive award to the wife.
Moreover, under the circumstance presented here, where the parties had been separated for an extended period of time and where the payee spouse relied on a new relationship for her support rather than taking steps to become self-supporting, it was highly doubtful that the court, “in its sound discretion,” would see fit to make a significant final maintenance award. The result should not be any different simply because the husband and the wife are still married and it is temporary maintenance, rather than final maintenance, that is at issue.
Having found that it was just and appropriate to deviate downwards from the presumptive award, Justice Cooper found that the husband’s temporary maintenance obligation would be to continue to pay the wife the $650 he had been voluntarily paying.