In addition to providing a guideline for the amount of a maintenance (alimony) award, New York’s relatively new maintenance (alimony) statute includes a presumptive range for the period of time maintenance is to be paid based upon the length of the marriage. Particularly with short marriages, what should be the impact of the length of the marriage on the award of maintenance while the divorce action is pending? Put differently, should a spouse be able to increase support, just by keeping the divorce action going?
In her August 31, 2017 decision in Barlik v. Barlik, Acting Queens County Supreme Court Justice Elisa S. Koenderman was faced with that issue.
Among the temporary relief sought by the parties in this divorce action, the parties husband cross-moved for exclusive use and occupancy of the marital residence. The wife moved, in part, for temporary maintenance and child support and for an order directing the husband to pay 100% of the carrying costs of the marital residence; an order appointing a forensic accountant to value the income from the husband’s business as well as a real estate appraiser to value the marital residence, both at the husband’s expense; and for counsel fees.
Justice Koenderman first denied the husband’s motion for exclusive use and occupancy, but granted the wife’s cross-motion for exclusive use and occupancy of the marital residence.
The Court then granted the wife’s motion for temporary maintenance and child support. As required by the statute, the court calculated the guideline amount by applying the statutory formula to the payor’s income up to the statutory cap of $178,000 (see DRL § 236[B][5-a][b] & ). Then, the court may adjust the guideline amount of temporary maintenance if it is “unjust or inappropriate” (DRL § 236[B][5-a][h]). The court must consider certain enumerated factors, including but not limited to the health and age of the parties; the present or future earning capacity of the parties; and care of children during the marriage that inhibits a party’s earning capacity, as well as any other factor which it finds just and proper to determine “whether and to what extent it will apply the statutory formula” to the payor’s income which exceeds the statutory cap.
Justice Koenderman used the average of the husband’s 2015 and 2016 income at $326,832, based upon his “past income or demonstrated earning potential.” The wife’s income was $0. The Court applied the statutory formula to determine that temporary maintenance based upon the husband’s income capped at $178,000 would be $35,599.92 annually, or $2,966.66 per month.
However, after considering the relevant statutory factors, the Court found that awarding only the guideline amount of temporary maintenance would be unjust and inappropriate. The husband owned his own business from which he earned a significant amount of money. The wife’s present earning capacity was inhibited by her care of the parties’ infant child. Moreover, the parties enjoyed a high standard of living during the marriage. Indeed, both parties alleged that monthly carrying costs for the marital residence alone exceeded $5,000.
Were the Court to have applied the formula to the entirety of the husband’s determined income of $326,832 (and it appears that the amount should have been reduced for FICA and Medicare taxes), the award would have been $65,366.40, or $5,447.20 per month. However, the Court awarded the wife slightly more than that, $5,500 per month, taxable to the wife.
Notably, the Court awarded that sum only for four months based upon the relatively short length of the marriage.
Since the parties were married for only sixteen months (see DRL § 236[B][5-a][b]), the husband shall pay the wife temporary maintenance for a period of four months (see DRL § 236[B][5-a][f]. “The court shall determine the duration of temporary maintenance by considering the length of the marriage.”
Justice Koenderman stated that this would be a sufficient period for the wife to meet her expenses while seeking employment and making any necessary child care arrangements.
Then the Court went on to decide the award of temporary child support. The Court noted that to determine child support, a court must calculate the amount of the basic child support obligation by applying the statutory formula to the parents’ combined income up to the statutory cap of $143,000 (see DRL §240[1-b][b] & [c]). Here, the husband’s current income, minus the $22,000 (4 * $5,500) in temporary maintenance to be paid to the wife, would be $304,832. The wife’s income, comprised of the four months of temporary maintenance from the husband, was $22,000. The basic child support obligation, multiplying the $143,000 cap times 17% would be $24,310 per year (see DRL §240[1-b][c]; DRL §240[1-b][b][i]).
Again, as the parents’ combined income exceeded the statutory cap, a court must determine whether to award child support on the income in excess of the $143,000 cap by considering certain enumerated factors as well as any other factors which the court deems relevant (see DRL § 240[1-b][c]). Here, considering the husband’s financial resources; the wife’s substantially lesser income; and the high standard of living the child would have enjoyed had the marriage continued, the Court found it just and appropriate to apply the statutory formula to the parents’ total combined income of $326,832 (see DRL § 240[1-b][f]). The child support obligation based on all of the income would be $55,561.44 per year.
While the wife received temporary maintenance from the husband, the husband was to pay 93% of that amount (as the husband’s resulting $304,382 in income after subtracting the maintenance was 93.27% of the total income, rounded by the Court to 93%; the wife’s $22,000 in temporary maintenance accounted for the remaining 6.73%, rounded by the Court to 7%). Accordingly, while the wife received temporary maintenance from the husband, the husband was to pay $4,306.01 per month in child support. Further, while the wife received temporary maintenance from the husband, the husband was to pay 93% and the wife to pay 7% of statutory add-on expenses for health and child care.
Once the husband’s temporary maintenance obligation terminated after only four months, his temporary periodic child support payment would increase to $4,630.12 per month (17% of $326,832 ÷ 12) plus 100% of statutory add-on expenses.
Justice Koenderman denied the wife’s motion for the husband to pay 100% of the carrying costs of the marital residence. The Court noted that the wife’s temporary maintenance award was to encompass all her basic living costs, including housing, food, clothing and other usual expenses. Additionally, the child support award under the Child Support Standards Act includes the cost of shelter for the child. Accordingly, while the wife was receiving temporary maintenance and/or child support and exclusively occupying the marital residence, the wife was directed to pay 100% of the carrying costs.
Interestingly, the Court had noted that the agreed-upon carrying costs of the marital residence exceeded $5,000 per month. Thus, when temporary maintenance ends; the now-unemployed wife will not be receiving enough support to cover even those costs, not to mention all other living expenses (although the direct expenses of a 18-month old are limited).
In other rulings, Justice Koenderman granted the wife’s motion to appoint an appraiser to value the marital residence as well as an appraiser to value the husband’s business, but directed the husband and the wife to each pay 50% of the cost of the appraisals, subject to reallocation at trial.
Finally, the Court granted the wife’s motion for interim counsel fees incurred to date, but denied her motion for prospective fees, as the Court was disinclined to provide an incentive to proceed to trial when settlement remained possible.
Susan Moss, Esq., represented the husband. Warren Hoffman, Esq., represented the wife.