Despite repeated efforts to bring predictability and consistency to temporary support awards, that goal remains elusive. Consider the December, 2017 decision of the Appellate Division, Third Department, in Rouis v. Rouis.

The parties were married in 1993 and had two children. After the husband departed the marital residence, the wife commenced this action for divorce in 2014. Applying the pre-2015 temporary maintenance formula on the wife’s motion for temporary relief, Sullivan County Supreme Court Justice Mary MacMaster Work granted the wife, among other things, temporary maintenance ($1,958 per month) and child support ($2,720 per month) and required the husband to pay for the carrying costs and upkeep of the marital home ($4,859 per month), private school for the youngest child ($848 per month), health insurance for the family ($1,921 per month), interim counsel fees ($10,000) and the wife’s vehicle and fuel costs ($644 per month). The husband appealed.

Recognizing that the combined monthly awards amounted to an annual award of $155,400 plus $10,000 in interim counsel fees, to be paid from the husband’s annual gross income of $183,300.50 (the wife’s pre-award income was $11,700.00), the Third Department agreed that the temporary awards were excessive and should be modified.

The appellate court noted that the (pre-2015) temporary maintenance formula resulted in a presumptive monthly temporary maintenance amount of $4,387.50. Justice Work also granted the wife’s request that the husband also pay the $4,859 in expenses, including the mortgage, taxes, utilities, insurance and upkeep. Justice Work recognized that it would not be equitable to require the husband to pay full maintenance, child support and all carrying costs on the marital home, and therefor essentially credited the husband for one half of the carrying costs on the home ($2,429.50 per month) by reducing the presumptive maintenance award by that amount, resulting in a temporary maintenance award of $1,958 per month. The lower court also ordered the husband to pay the full monthly carrying costs on the home ($4,859) in which he did not reside. The appellate court noted that when the wife’s vehicle expenses were added ($644 per month), the total combined monthly award was $7,461, plus tuition ($848 per month) and child support. The net effect of Supreme Court’s order was that the husband was ordered to pay the full presumptive maintenance award plus one half of the carrying costs on the home and the wife’s vehicle expenses.

The Third Department held that the statutory formula used to calculate the presumptive temporary maintenance award was intended to cover all of the nonmonied spouse’s needs and basic living expenses, including the carrying charges on the home and her vehicle expenses. Doing so, the Third Department cited the First Department’s observation in its 2012 decision in Khaira v. Khaira, 93 A.D.3d 194, that “[n]o language in either the new temporary maintenance provision or the [Child Support Standards Act] specifically addresses whether the statutory formulas are intended to include the portion of the carrying costs of their residence attributable to the nonmonied spouse and the children. . . . But, in the absence of a specific reference to the carrying charges for the marital residence, we consider it 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 costs of food and clothing and other usual expenses.”

Nonetheless, the Third Department held that while requiring the husband to pay a portion of the housing costs may have been appropriate, the lower court should have discussed why the presumptive award of temporary maintenance was “unjust or inappropriate” and the factors it considered. To that end, the court did not explain its reasons for substantially upwardly deviating from the presumptive maintenance award or the basis for requiring the husband to pay the add-on living expenses and half of the housing expenses on top of the guideline amount.

The Third Department found that the combined award for maintenance, carrying costs and the expenses of the wife’s vehicle ($7,461 per month) — which was $3,073.50 per month in excess of the presumptive maintenance award ($4,387.50 per month) (without considering health insurance costs, child support or tuition) — was excessive. Accordingly, the court reduced the husband’s obligation to pay the carrying costs on the marital home by approximately one half of that $3,073.50 excess amount, or $1,540 per month, to $3,319 per month, leaving the $1,958 temporary maintenance award unchanged.

Gleaning some semblance of predictability on made (temporary) support awards was made more difficult by the Third Department’s handling of the lower court’s order that the husband pay $1,168 for “household upkeep,” included in the wife’s total requested carrying costs of $4,859. Justice Work’s order directed that, if the husband did not spend all of the upkeep amount in a given month, he was required to deposit the excess funds into an account for future upkeep and, if not used for upkeep, any remaining balance “shall be returned to the wife when the house is sold.”

The appellate court held that nothing in its decision should be interpreted as changing the husband’s obligation to pay the monthly excess upkeep amount ($1,168), if any, into a separate account. The Third Department clarified that the upkeep payment was to be a part of (not in addition to) the husband’s obligation to pay a total of $3,319 per month in carrying costs on the marital home. [As the appellate court reduced the marital residence obligation by $1,540 per month, more than the entire upkeep amount, what portion of the remaining $3,319 in carrying costs was to be applied to “upkeep?”] The appellate court noted that wife, “of course,” is to be responsible for paying the remaining carrying costs on the home (other than the specified upkeep costs) from her temporary maintenance award. The parties’ respective pro rata obligations, in the event that the upkeep costs in any month exceed $1,168 and exceed any amount in the excess account, remain undisturbed [???]. The propriety and fairness of awarding the wife the balance of any funds paid by the husband into the upkeep account is a matter to be resolved at trial as part of the overall equitable distribution award and, accordingly, the Third Department did not comment on that issue at this juncture.

The appellate court also held that the lower court had miscalculated the child support award and the parties’ pro rata shares of add-on expenses. The court approved the lower court’s calculation of the combined parental income of $195,000, based upon the husband’s annual income of $130,650 (after maintenance is deducted) and computed the wife’s annual income at $64,350 (with maintenance included) [a 2015-amendment concept]. However, the lower court (1) failed to deduct FICA taxes from the parties’ combined income as required (2) erroneously calculating the basic child support obligation by applying the parties’ (incorrect) pro rata shares to the entire combined parental income, without first multiplying it by the statutory percentage (25% for two children) and (3) failed to indicate, with regard to the amount of combined parental income in excess of the statutory cap (then $141,000), if it would apply the statutory factors or the child support percentage. Accordingly, the matter was remitted for immediate recalculation of the husband’s temporary child support obligation.

Thomas R. Davis of Stenger, Roberts, Davis & Diamond, LLP, of Wappingers Falls, represented the husband. (of counsel), for appellant. The Law Office of Patricia T. Bisesto, Esq., of White Plains, represented the wife.