New Child Support Standards Chart released April 1, 2012 


According to the Child Support Standards Chart, [LDSS 4515 (4/12)] released April 1, 2012, prepared by New York State Office of Temporary and Disability Assistance, Division of Child Support Enforcement, the 2012 poverty income guideline amount for a single person as reported by the United States Department of Health and Human Services is $11,170 and the 2012 self-support reserve is $15,080. 


The combined parental income amount is $136,000. It will be adjusted every two years (effective January 31st for applicable years) based on the average annual percent changes to the federal Department of Labor’s Consumer Price Index for Urban Consumers. The adjusted combined parental income amount will be announced and available at January 31st until such time as this revised form is released. st for applicable years) based on the average annual percent changes to the federal Department of Labor’s Consumer Price Index for Urban Consumers. The adjusted combined parental income amount will be announced and available at www.childsupport.ny.gov until the revised Child Support Standards Chart is released.


The Child Support Standards Chart is released each year on or before April 1. The income tables are used to determine the annual child support obligation amount pursuant to the provisions of Chapter 567 of the Laws of 1989.  The chart may be downloaded from https://newyorkchildsupport.com/dcse/pdfs/cssa_2012.pdf.


Res Judicata Bars Court from Considering Fathers Biological Parental Status Which Holds He Has No Standing to Seek Visitation with Child


In Matter of Weaver v Durfy--- N.Y.S.2d ----, 2012 WL 895497 (N.Y.A.D. 4 Dept.) Family Court  dismissed the Petitioners prior petition seeking to establish paternity of the child. The court found that respondents were married when the child was born and at the time of the hearing on the paternity petition and that, based upon petitioner's admissions, he had acted as a friendly neighbor to the child, although he had regular and significant contact with the child with respondents' consent. The court therefore determined that it was not in the best interests of the child to disrupt her legitimate paternal relationship with respondent father.  After he perfected his appeal from the prior order dismissing the paternity petition, petitioner discontinued that appeal based on his agreement with respondents that respondent mother and the child would participate in DNA testing, which revealed a probability of 99 .99% that petitioner was the child's biological father, and that respondents would permit petitioner to visit with the child. The child subsequently began to receive Social Security benefits as petitioner's biological child. Thereafter, respondents refused to permit petitioner to visit with the child, and he filed a petition seeking, inter alia, visitation based upon the DNA test results. Family Court determined that the petition was barred by res judicata and dismissed the petition. The Appellate Division affirmed. It observed that the resolution of the proceeding presented a coalescence of the various societal interests promoted by the doctrine of res judicata, particularly the need for finality, stability and consistency in family status determinations. Thus, the court properly determined that it was prohibited by the doctrine of res judicata from considering petitioner's biological parental status as a basis for determining his standing to seek visitation with the child and as petitioner has no legal standing to seek visitation with the child, the court properly dismissed the petition.


Where Agreement Required Decedent to Name Children as the "Joint Irrevocable Designated Beneficiaries" He Was Without Authority to Name Any Other Person as a Partial or Sole Beneficiary 


In Johnson v New York State and Local Retirement System, --- N.Y.S.2d ----, 2012 WL 895707 (N.Y.A.D. 4 Dept.) Plaintiff Wendy Johnson and Dan Johnson (decedent) were divorced in 1998. During the divorce action, they executed a matrimonial settlement agreement, pursuant to which they were required to name their children, plaintiffs Dane Johnson and Danika  Johnson, as "joint irrevocable designated beneficiaries" of, inter alia, the death benefits provided by their retirement plans. That agreement was subsequently incorporated but not merged into the judgment of divorce. In March 1998, shortly before executing the matrimonial settlement agreement, decedent had named his then girlfriend, defendant Kimberly Leone-Johnson, as a one-third beneficiary of his New York State Retirement Plan death benefit and each of his children as a one-third beneficiary. Leone was not removed as a beneficiary after the judgment of divorce was entered in May 1998 and, moreover, in June 1998 decedent purportedly designated Leone as the sole beneficiary of his retirement plan death benefit.   In July 2000 decedent and Leone executed a prenuptial agreement and were married. Pursuant to that agreement, decedent and Leone expressly waived all rights and claims to each other's pensions and retirement plans. In June 2006, decedent and Leone executed a separation agreement, which contained clauses that, inter alia, reaffirmed the pension and retirement plan waivers contained in the prenuptial agreement and mutually released and waived all rights that decedent and Leone had to each other's estate. Decedent and Leone allegedly reconciled without divorcing just prior to decedent's death in October 2008. No beneficiary changes were made to decedent's retirement plan death benefit after Leone was allegedly named the sole beneficiary in 1998. After decedent died, however, defendant New York State and Local Retirement System (System) notified Leone that decedent's designation naming her as the sole beneficiary was invalid and that the System intended to disburse the death benefit to Leone and the children in accordance with decedent's March 1998 designation.    Plaintiffs commenced an action seeking to designate the children as the joint irrevocable beneficiaries of decedent's retirement plan death benefit in compliance with the matrimonial settlement agreement and to remove Leone as a beneficiary thereof. They moved for summary judgment and Supreme Court determined that Leone and the children were each entitled to one-third of decedent's retirement plan death benefit. The Appellate Division held that Leone was not entitled to any part of decedent's retirement plan death benefit.    The matrimonial settlement agreement clearly required decedent to name the children as the "joint irrevocable designated beneficiaries" of his retirement plan death benefit. As a result of that agreement, decedent was without authority to name any other person as a partial or sole beneficiary of such death benefit. Moreover, any right to that benefit that Leone would have acquired by virtue of being married to decedent was waived by the prenuptial and separation agreements. The court erred in determining that Leone's waiver of her interest in the retirement plan death benefit was not "explicit, voluntary and made in good faith" ( Silber v. Silber, 99 N.Y.2d 395, 404,cert denied 540 U.S. 817). The contention of Leone that decedent's obligation to name the children as beneficiaries of his retirement plan death benefit was solely to provide security for his child support obligation was contrary to a fair interpretation of the matrimonial settlement agreement. It  rejected Leone's further contention that her separation agreement with decedent became void when they allegedly reconciled prior to his death. By its terms, the separation agreement could only be canceled in writing.


Improper for Court to Take Judicial Notice of Factual Material in Filed Net Worth Statement.


In Halse v Halse, --- N.Y.S.2d ----, 2012 WL 850604 (N.Y.A.D. 3 Dept.)  Plaintiff commenced an action for divorce in September 2008 and, thereafter, a pendente lite order was entered which, among other things, directed the parties to submit to drug testing and prohibited the parties from selling or transferring any assets. In June 2010, plaintiff moved to have defendant held in contempt, alleging that she had sold various marital assets and was using drugs and alcohol. After a nonjury trial, Supreme Court issued a judgment of divorce, ordered the equitable distribution of marital assets, awarded maintenance to defendant and ordered plaintiff to pay child support for the parties' two children. In a separate order, the court adjudged defendant to be in contempt of the pendente lite order, but imposed no punishment.
The Appellate Division held that substantial deference is accorded to the trial court's determination regarding equitable distribution so long as the requisite statutory factors were considered. In this case, it was apparent that  Supreme Court considered all of the relevant factors before equitably distributing the parties' marital assets; of particular note was the long duration of the marriage and the parties widely disparate future financial circumstances. Moreover, contrary to plaintiff's contention, the record reflected that Supreme Court adequately addressed defendant's dissipation of marital assets. Notably, the court awarded plaintiff adjustments to compensate him for the value of various items of marital property that had been improperly sold by defendant, including $12,500 representing half of the value of a backhoe.  As for the marital residence, it was not persuaded by plaintiff's contention that he should have been awarded an adjustment based upon defendant's alleged dissipation of that asset. While the evidence did indicate that defendant had not maintained the residence in optimal condition, there was also evidence that the real estate market was overburdened with properties in the residence's price range and that market conditions, in general, had declined. As such, there was no definitive proof that the approximately $200,000 decline in the market value of the house was due solely to defendant's actions. Further, although plaintiff opined that the residence needed between $45,000 and $62,000 in repairs to become marketable, he submitted no proof to support these figures. In awarding defendant maintenance, Supreme Court considered the statutory factors and determined that a maintenance award to defendant in the amount of $3,000 per month for two years and then $2,500 per month for three years was appropriate. Although defendant did not offer a statement of net worth at trial, the record contained sufficient evidence regarding both parties' assets and liabilities to permit it to conclude that the durational maintenance award was a provident exercise of the court's discretion The Appellate Division pointed out in a footnote that although defendant filed a statement of net worth with Supreme Court in 2008, it was not proper for the court to take judicial notice of the factual material contained therein (citing Matter of Grange v. Grange, 78 A.D.3d 1253, 1255 [2010] ).


Failure to Disclose Financial Information and Lack of Counsel Insufficient to Set Aside Prenuptial Agreement 
                                                   
In Cohen v Cohen, --- N.Y.S.2d ----, 2012 WL 851206 (N.Y.A.D. 1 Dept.) the Appellate Division held that plaintiff's alleged threat to cancel the wedding if defendant refused to sign the agreement did not constitute duress ( Colello v. Colello, 9 A.D.3d 855, 858 [2004]). Nor did the absence of legal representation establish overreaching or require an automatic nullification of the prenuptial agreement, especially as the evidence showed that the agreement was prepared by an independent public official unaligned with either party. Plaintiff's alleged failure to fully disclose his financial situation was also insufficient to vitiate the prenuptial agreement ( Strong v. Dubin, 48 A.D.3d 232, 233 [2008] ). There was no evidence that plaintiff concealed or misrepresented any financial information or the terms of the agreement. To the extent the prenuptial agreement, to be enforceable in New York, must contain an acknowledgment sufficient to entitle a real property deed to be recorded, this requirement was  satisfied by plaintiff's filing, at the direction of the court, of a certificate of conformity attesting to the credentials of the French official who drafted the agreement, and certifying that his proof of acknowledgment of the agreement conformed to the laws of France (Real Property Law 301-a).


Where Supreme Court Refers Issue to Family Court, it  Has  Jurisdiction to Determine Issue of Child Support During  Divorce Action.


In  Francois v Francois, --- N.Y.S.2d ----, 2012 WL 833185 (N.Y.A.D. 2 Dept.) the Appellate Division held that the Family Court had subject matter jurisdiction to hear and determine the issue of child support during the pendency of the divorce action. When an action for divorce is pending, the Family Court may exercise its jurisdiction only in certain situations, such as where the Supreme Court refers an application for support to it ... or where the Supreme Court has not acted concerning support and the spouse is likely to need public assistance" ( FCA 464). Here the Supreme Court referred all issues of child support to the Family Court for a hearing and determination .Accordingly, the Family Court properly exercised its jurisdiction over the child support proceeding.




Spouse generally obligated to pay 50% share of income tax liability if spouse benefits from use of funds or delay in paying tax liability.  Imputation of income may be based upon testimony of expert. Provision for Future Modification Improper.


In Lago v Adrion,--- N.Y.S.2d ----, 2012 WL 833203 (N.Y.A.D. 2 Dept.), the parties were married on September 10, 1995, and had one child, born October 28, 1996. The plaintiff wife commenced the  action by filing a summons and complaint on September 19, 2006, after 11 years of marriage. The parties agreed on joint custody of the child and the primary physical residence of the child with the plaintiff, and consented to a divorce on the ground of constructive abandonment. In March 2010 the parties proceeded to a nonjury trial on certain financial issues.   At the conclusion of the trial, the Supreme Court found that the defendant was a tax attorney with a current income of $475,000 per year, that the plaintiff was not working, and that the plaintiff had a masters' degree in architecture from Harvard University and performed some doctoral work at the Massachusetts Institute of Technology. Based upon her educational qualifications and experience, and expert testimony, the Supreme Court imputed income of $80,000 per year to the plaintiff. The Supreme Court determined that the defendant was obligated to pay $2,041 per month in basic child support based on the plaintiff's imputed income of $80,000 per year, and a finding that the child support percentage should only be applied to the first $150,000 of the defendant's annual income. The supplemental findings of fact stated that "[t]o the extent that this court may have deviated from the guideline standards," it did so for the reasons that the child was "thriving" on the pendente lite child support of $2,041 per month, and the parties' standard of living during the marriage was that of a "middle-class" family. The judgment appealed from further provided that "should the Defendant lose his law license by suspension, revocation, or otherwise, and be unable to sustain his current level of income, such event shall constitute a sufficient change of circumstances warranting application for downward modification" of child support.    With respect to the equitable distribution of property, the Supreme Court concluded that the parties incurred Federal tax liability of $430,476 for 2005 and 2006 up until September 19, 2006, and New York State tax liability of $38,000 for that same period, which constituted a marital debt which should be divided equally between the parties. This tax liability included interest and penalties. The Supreme Court held that the plaintiff's one-half share of that tax liability was $234,238.
The Appellate Division held that Supreme Court properly imputed $80,000 in annual income to the plaintiff based upon her education and experience, and the testimony of the defendant's expert. "In determining a child support obligation, a court need not rely on a party's own account of his or her finances", but may, in the exercise of its considerable discretion, impute income to a party based upon his or her employment history, future earning capacity, and educational background , and what he or she is capable of earning, based upon prevailing market conditions and prevailing salaries paid to individuals with the party's credentials in his or her chosen field . Further, imputation of income may be based upon the testimony of an expert regarding a party's ability to earn an income. Here, the Supreme Court's imputation of income was supported by unrefuted expert testimony and testimony regarding the plaintiff's education and experience.
The Court observed that effective January 31, 2010, the Child Support Standards Act provides that the applicable child support percentage should be applied to the first $130,000 of combined parental income (DRL 240[1-b] [c][2];  SSL111-i[2][b]). Where the parents' income exceeds the income cap, as in this case, the amount of child support in excess of the income cap is determined based upon a consideration of factors set forth in DRL 240 (1-b)(f) "and/or the child support percentage" (DRL 240 [1-b][c][3]). The factors set forth in Domestic Relations Law s 240(1-b)(f) include, in  pertinent part, the financial resources of both parents, the needs of the child, the standard of living the child would have enjoyed had the marriage not been dissolved, nonmonetary contribution that the parents will make to the care and well-being of the child, and any other factor which the court determines to be relevant to the case. Here, the evidence at the trial supported the Supreme Court's conclusion that, during the marriage, the child enjoyed a "middle-class" lifestyle, and her needs were met by the pendente lite child support award of $2,041 per month. The application of the child support percentage to the first $150,000 of the defendant's annual income, and the amount of child support awarded was supported by the record.
  The Appellate Division held that the provision of the judgment of divorce which stated that, "should the Defendant lose his law license by suspension, revocation, or otherwise, and be unable to sustain his current level of income, such event shall constitute a sufficient change of circumstances warranting application for downward modification" of child support, was improper. ( Matter of Knights v. Knights, 71 N.Y.2d 865). This provision of the judgment was deleted.
The Appellate Division observed that the income tax liability of the parties was subject to equitable distribution, but equitable distribution does not necessarily mean equal distribution. A spouse is generally obligated to pay his or her 50% share of income tax liability during the marriage if the spouse benefits from use of the funds or the delay in paying the tax liability.  However, if one spouse makes the financial decisions regarding the income tax return, and earned virtually 100% of the parties' income during the period, the court, in its discretion, may direct that spouse to pay the entire tax liability. The defendant acknowledged that he handled all tax matters for the parties during the marriage, and attributed his inability to pay his taxes from his current income to the fact that his expenses were too high, in part because he had to maintain a rented home for his family while the parties' house in Pawling was being renovated. The evidence adduced at trial indicated that it was his decision to move the parties' full-time residence to the house in Pawling, despite the fact that the house was in "bad shape."  Under the circumstances of this case, it could not  be said that the plaintiff derived a benefit from the defendant's failure to pay the taxes . The Appellate Division held that Supreme Court, in its discretion, should have directed the defendant to pay the entire tax liability.  


Supreme Court Agree’s with Justice Falanga - Holds Plaintiff's Self-serving Declaration about State of Mind Is All Required for Divorce on “Irretrievable Breakdown” Ground, Disagreeing with Schiffer v. Schiffer and  Strack v. Strack.


In Vahey v Vahey, --- N.Y.S.2d ----, 2012 WL 832350 (N.Y.Sup.) Supreme Court granted the defendant’s motion to dismiss the action pursuant to CPLR 3211(a)(7) to the extent that the first and second causes of action, alleging cruel and inhuman treatment and constructive abandonment, respectively, were dismissed.
Supreme Court observed that  CPLR 3016(c) requires that in an action for divorce, "the nature and  circumstances of a party's alleged misconduct, if any, and the time and place of  each act complained of, if any, shall be specified in the complaint ..." In this case, the plaintiff has sought a divorce on three grounds: cruel and inhuman treatment, and an irretrievable breakdown in the  marital relationship. 
The Court agreed with the defendant that a claim of cruel and inhuman treatment was not made out, as it did not specify the time and place of the misconduct, and, in addition, did  not allege conduct that rises to the required level. All that was alleged was that the wife called the husband vile names and used obscene language, told the plaintiff husband that she didn't want to be married to him any more, and that he was not a good husband. This was patently insufficient and this claim was dismissed. 
The plaintiff alleged in his verified complaint that "The relationship between Plaintiff and Defendant has broken down irretrievable [sic] for a period of at least six months."The Supreme Court disagreed with the defendant that CPLR 3016(c) and the cases that cite that statute mandate factual allegations supporting this claim.  CPLR 3016(c) refers to the necessity of pleading allegations of "misconduct." Domestic  Relations Law  170(7) permits a party to seek a divorce upon a sworn statement by that party that the marital relationship between husband and wife has broken down irretrievably for a period of at least six months. This has been pled. This section does not require the plaintiff to allege that the other party was responsible for the breakdown or had misbehaved in any way. The very essence of the law is to dispense with the necessity of proving misconduct by the other spouse. CPLR 3016(c) speaks only of pleading acts of misconduct, and misconduct does not have to be alleged under Domestic Relations Law 170(7). Therefore, it is  more accurate to say that CPLR 3016(c) continues to apply where marital fault is alleged, but does not apply when the plaintiff alleges a breakdown in the relationship, as there is no need to cast blame on the other party. Given the clear language of the statute regarding the need to prove "misconduct," the lack of an amendment to CPLR 3016 indicated that the Legislature was not requiring a party asserting the new "no-fault" ground to plead and prove facts in support of the irretrievable breakdown. If its intention were otherwise, such an amendment to the divorce action pleading requirements would be needed. Rather, all that is required is the sworn statement of the irretrievable breakdown, a statement that finds no counterpart in any of the "fault" grounds. Accordingly, the motion to dismiss was denied as to the claim made under Domestic Relations Law 170 (7).  The Court noted that as the Legislature in adopting section 170(7) has not required the pleading of objective facts of the breakdown, but has required instead no more than a sworn statement of a breakdown by the plaintiff, it did not appear that a plaintiff can be put to his or her proof on the subject. Under this ground the plaintiff's sworn belief about the state of the relationship must be deemed sufficient, for if not the party seeking the divorce on this basis could be put through the same type of litigation regarding the martial relationship that this legislative addition was clearly designed to avoid. The Court agreed with the analysis set forth by Justice Falanga that the section 170(7) ground is inherently subjective in nature, and "a plaintiff's self-serving declaration about his or her state of mind is all that is required for the dissolution of a marriage on the ground that it is irretrievably broken." D.R.C. v. A.C., 32 Misc.3d 293 (Sup Ct Nassau County 2011). The Court disagreed with the views expressed in  Schiffer v. Schiffer, 33 Misc.3d 795 (Sup Ct Dutchess County, 2011) and  Strack v. Strack, 31 Misc.3d 258 (Sup Ct Essex County 2011).
 The Court denied that cross motion  for a sharing of family expenses pro rata based upon the parties' income at the commencement of the action. There was no demonstration that the reasonable needs of the movant or of the parties' children were not being met, as all continued to reside together in the marital residence, and it was apparent that the bills were being paid. The basis of the request for this relief was that plaintiff believed it unfair that the defendant, who retired from the New York City Police Department after the action was commenced, now asserted that she no longer had her full salary and thus had less to contribute to household expenses. Plaintiff, in effect, wanted the Court to "balance the scales" by imputing income to the defendant and to direct specific percentages based on such imputed income. This is not the purpose of a pendente lite award.  Here, there was no proven need for support on the part of the moving party, especially in view of the fact that even before the defendant's retirement the plaintiff's income exceeded hers.

Important New Decisions - March 21, 2012

Temporary Maintenance Guidelines Income Cap Raised from $500,000 to $524,000.
The "cap" on each spouses annual income, to be utilized in calculating temporary maintenance orders, has increased from $500,000 to $524,000 effective January 31, 2012 in accordance with Domestic Relations Law § 236 [B][5-a][b][5] . (See Temporary Maintenance Guidelines Worksheet, revised January 31, 2012 at www.nycourts.gov/divorce/TMG-worksheet.pdf or Temporary Spousal Maintenance Guidelines Calculator, revised January 31, 2012 at www.nycourts.gov/divorce/calculator.pdf)  Beginning January 31, 2010 and every two years thereafter, the income cap increases by the product of the average annual percentage changes in the consumer price index for all urban consumers (CPI-U) as published by the united states department of labor bureau of labor statistics for the two year period rounded to the nearest one thousand dollars. The office of court administration is required to determine and publish the income cap. See Domestic Relations Law § 236[B], [5-a][b][5].


Downward Modification of Child Support Based on a Loss of Employment Due to Injury Granted Where Father Demonstrated Injuries Severely Limited His Ability to Resume His Veterinary Practice
In Smith v Smith, --- N.Y.S.2d ----, 2012 WL 88100 (N.Y.A.D. 3 Dept.) pursuant to a 2002 judgment of divorce, defendant (mother) was awarded sole custody of the parties' four children. Pursuant to the Child Support Standards Act (DRL 240[1-b] ), plaintiff (father) was directed to pay $2,887 per month in child support based on his imputed income of $160,000 as the sole proprietor of a veterinary practice. The mother, who had no income, was awarded durational maintenance. In 2007, the father was seriously injured in a motor vehicle accident and, in 2009, he sought a downward modification of his child support payments, alleging that there had been a substantial change in circumstances because, among other things, his injuries severely limited his ability to resume his veterinary practice and to perform veterinary services. After a hearing, Supreme Court granted the motion and recalculated the father's monthly child support payments under the Child Support Standards Act to be $634.96 based on the mother's present income of $49,605 from her work as a part-time dental hygienist and the father's income of $24,877.20 from his limited practice and his Social Security disability benefits.  The mother appealed, contending that, despite the father's injuries and disability, the motion for a downward modification should have been denied because the father could provide support through some other type of veterinary practice. The Appellate Division affirmed. It observed that she did not present any evidence contradicting the father's proof of his limited ability to work or supporting her claim that he could hire other veterinarians to assist in running his practice. While a request for a downward modification of child support based on a loss of employment due to injury or illness may be denied where the parent seeking the modification still has the ability to provide support through some other type of employment Supreme Court credited the father's testimony that he is no longer able to work full time at his own practice, could not  afford to hire another person to assist him in his practice and was not employable at another practice because of his condition. Giving deference to Supreme Court's credibility determinations there was no basis to disturb its determination that the father demonstrated a significant change in circumstances warranting a downward modification of his child support obligation. The Appellate Division rejected the mothers argument that the presumptively correct amount of child support was unjust or inappropriate and that, as a result, the father's personal injury settlement should have been considered in determining his child support obligation The children  received derivative Social Security benefits, and the evidence established that most of the father's settlement had already been used to pay the father's child support arrears, continue his child support payments and otherwise mitigate his financial problems.


Appellate Division Generally Accords Deference to Supreme Court's Determination Regarding Amount and Duration of Maintenance as Long as the Court Considers the Statutory Factors and Provides a Basis for its Conclusion
                 In O’Connor v O’Connor, --- N.Y.S.2d ----, 2012 WL 88226 (N.Y.A.D. 3 Dept.) the parties in this matrimonial action were married in 1986, they had three children (one born in 1990 and twins born in 1992), and plaintiff commenced this action in August 2009 premised upon defendant's abandonment. Following a nonjury trial, Supreme Court, as relevant to this appeal, awarded plaintiff maintenance of $1,000 per month until she was eligible for Social Security retirement benefits in January 2022, subject to earlier termination upon various conditions, including if she remarries or the commencement of her receipt of her share of defendant's pension. In its decision and order, the court also partially granted plaintiff's motion for counsel fees, awarding $7,500 of the over $20,000 in then unpaid counsel fees and disbursements. These awards were included in the April 2011 judgment of divorce. Defendant, challenging the duration of maintenance, appealed from the judgment, which prompted plaintiff to cross-appeal therefrom and to move for an award of appellate counsel fees. Supreme Court, in July 2011, granted plaintiff $900 in counsel fees for making the motion and $9,000 for appellate counsel fees. Defendant appealed from the July 2011 order.
The Appellate Division stated that while its  authority is as broad as Supreme Court's regarding maintenance it generally accords deference to Supreme Court's determination regarding the amount and duration of maintenance" 'as long as the court considers the statutory factors and provides a basis for its conclusion.  Maintenance is appropriate where, among other things, the marriage is of long duration, the recipient spouse has been out of the work force for a number of years, has sacrificed her or his own career development or has made substantial noneconomic contributions to the household or to the career of the payor. The fact that a wife has the ability to be self-supporting by some standard of living does not mean that she is self-supporting in the context of the marital standard of living. Here, Supreme Court discussed each of the statutory factors. This was a long-term marriage of 24 years and plaintiff was 50 years old. Although she had a marketing degree and had a job related to her degree early in the marriage, she passed on a promotion because defendant would not move, and later she gave up her position in order to raise the parties' children. She has not worked in marketing since early 1992. At the time of the divorce, she worked as a school aide and her earnings for 2009 and 2010 were about $14,000 and $18,000, respectively. Supreme Court accepted her testimony that she would need considerable educational updating of an unknown duration and cost before being able to return to a marketing position or another professional field. Defendant's 2010 income was about $78,854, but Supreme Court noted that he did not work available overtime which, in the prior four years, resulted in income levels between approximately $95,000 and $117,000. Defendant's child support obligation for the oldest child ended in August 2011 and the remaining obligation ceases in June 2013. In light of Supreme Court's discussion of the pertinent factors, the length of the marriage, career sacrifice by plaintiff, large discrepancy in current earning power and plaintiff's age, the Appellate Division was unpersuaded that the duration of maintenance determined by Supreme Court should be modified. It rejected defendants argument that it was error to order him to pay counsel fees for the underlying action and the appeal. It is within the discretionary power of Supreme Court to award counsel fees and, in doing so, "a court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties' positions" ( DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879, 881 [1987]). Supreme Court discussed the financial position of the parties, including defendant's superior earning capacity, and otherwise adequately explained its reasons for awarding counsel fees. Although plaintiff did not pursue her cross appeal, plaintiff's counsel stated in an affirmation that the cross appeal involved a narrow issue that appellate counsel had indicated did not affect her fee. It found  no abuse of discretion by Supreme Court in the award of counsel fees .


 Equitable Distribution and Counsel Fees Denied Where Parties Elected Not to Treat Marriage as an Economic Partnership                                                  
In Medley v Medley, 2011 WL 6975934 (N.Y.Sup.), 2011 N.Y. Slip Op. 52457(U) (Table, Text in WESTLAW), Unreported Disposition, the action was commenced August 2007 for absolute divorce by Plaintiff, Claudette Medley, against Defendant, Maurice Medley. A divorce was granted in favor of Defendant after inquest on the grounds of constructive abandonment. There were no children of the marriage. A trial was held on the ancillary issues of equitable distribution and counsel fees. The parties were married in a civil ceremony on March 5, 1997, after a brief courtship. At the time of the marriage, Plaintiff was in the United States with temporary legal status and Defendant was an American citizen. Prior to the marriage, each party resided in and owned their own home. Plaintiff's home, 141-15 255th Street, Queens, N.Y. ("255 Street property"), was jointly owned with a friend and Defendant was the sole owner of 130-60 221st Street, Queens, N.Y. ("221 Street property"). The parties agree that they lived together at 130-33 221st Street, Queens, N.Y. ( "130-33 Street property"), from March 2005 until July 7, 2007. The parties' living arrangements between March 1997 and 2005 were disputed and was the core issue at trial. Both parties engaged in real estate investments. Plaintiff as a real estate sales agent and owned real estate businesses. Defendant bought and sold investment properties. Except for one joint ownership, all their investments, businesses were conducted separately by each.
            Supreme Court found that Plaintiff migrated to the United States in 1988 under a temporary Visa with a work permit. She was employed in administration at a Hospital. In 1994, Plaintiff purchased the 255 Street property, jointly with a friend. Her friend and co-owner subsequently deceased and the one half share was inherited by her friend's daughter. Upon the death of Plaintiff's friend, the mortgage insurance paid off the mortgage on the 255 Street property. Plaintiff later refinanced the property by herself and solely kept the undisclosed proceeds. It was unclear how Plaintiff, solely, refinanced the joint ownership 255 Street property. The daughter did testify that she was aware the property was refinanced; however, no documents were executed by the daughter nor did she receive any of the undisclosed proceeds. After three months of dating, in early 1997, Plaintiff showed Defendant a letter from Immigration and Naturalization Service ("INS") informing Plaintiff that her Visa status had expired. The parties ensued in a conversation on how to change Plaintiff's status or whether Plaintiff will leave the United States to, what Plaintiff classified as, "her father's farm". After this conversation, the parties immediately planned the wedding. The day before the marriage, at Plaintiff's residence, the parties discussed drafting a pre-nuptial agreement. Plaintiff wrote a handwritten document. The document entitled, Prenuptial Agreement between Maurice Medley and Claudette as of 3/3/97,' states "that neither party would take any legal action to seek the other's assets". The agreement, though not acknowledged, is signed by both parties and dated March 4, 1997. One day later, the parties were married, March 5, 1997.  It was undisputed that the parties resided together from March 2005 until July 2007 at the 130-33 Street property. Plaintiff had one child, not of the marriage, who resided with Plaintiff and one other family member. There was no document placed into evidence to show that the parties filed joint tax returns or commingled their incomes and bank accounts. Although no tax records were placed into evidence, as Plaintiff claimed joint filing, she contradicted her testimony by acknowledging that as of 2003 she filed as head of household. Plaintiff filed as head of household to show diminished income so that her son could receive financial aid and a scholarship from the private school he attended in New Jersey. The tuition for the school was approximately $28,000.00 to $30,000.00 annually. As a result of Plaintiff's tax filing and the financial application she misrepresented to the school, her son obtained the scholarship and she paid $2,400.00 annually as a single parent.
          Plaintiff obtained a Bachelor of Arts degree from York College in 2004. From 1997 through 2005, she earned approximately $30,000.00 annually from Memorial Sloan Kettering. In 2005, her salary increased to $50,000.00. Plaintiff obtained her real estate license in 1997 and began real estate sales. In addition to Plaintiff's earnings from the hospital, she earned additional income ranging through 2010 from as high as $50,000.00 to low as $2,000.00. Consistent with the document signed on March 4, 2005, Plaintiff kept her income separate and apart from Defendant and some of this income was not disclosed prior to the commencement of this case.
          All income received from the properties were kept and used by Defendant towards the mortgages and carrying charges on the properties. Although there was a marriage on paper, the parties communication and financial partnership was non existent. Plaintiff's incomes were either not disclosed or shared. Defendant's income although known was not shared.
          The credible evidence showed that the parties lived their lives in a manner consistent with the written document they signed in March 1997. Each engaged in separate investment ventures, buying and selling investment properties and kept all their incomes separate from each other. Plaintiff did not disclose any of her real estate investment income prior to trial to Defendant although she claimed entitlement to Defendant's. Defendant did not claim any entitlement to Plaintiff's income, investments or license claiming this was the intent of the parties. Throughout the marriage, there was no credible evidence that the parties spent any significant time together but rather maintained a separate business lifestyle. At most the parties had a sparse emotional life but it was impacted by a clear separate financial life. What contribution Plaintiff made to the investment property purchased with Defendant's funds was unproven since the record was devoid of any documents to support Plaintiff's claim except her testimony.
         The Court found that there were several innuendoes of the purpose and true meaning of the parties nuptial. Their arrangement was a sparse emotional life with no financial partnership. For an approximate ten year marriage, the parties lived together for a total of two years and four months just prior to filing of the action. There was evidence that Plaintiff filed deceptive and misrepresented legal school documents and tax returns. Although the Court would not define or marshal what is a "married life". The cliche "you know it when you see it" could be inferred in this case. These parties engaged in a pattern of behavior that was inconsistent of any semblance of a marriage life in its ordinary and reasonable meaning. Plaintiff  failed to present any documentary proof or credible evidence for her claims of entitlement. It was undisputed that during the marriage, Defendant purchased three properties, titled solely in his name. Defendant claimed that Plaintiff failed to meet her burden to establish that she made any contribution to these properties, thus warranting an equitable distribution of the value of these real properties. Defendant made no claim of an equitable distribution of Plaintiff's businesses or license.
      Looking to DRL 236(B)(1)(c), it was clear that all property acquired during a marriage acquired by either spouse, with the exception of property in specifically delineated categories, is considered to be marital property. In this matter, Defendant purchased the Dean Street property, the DeCosta Avenue property, and the 130-33 Street property, during the marriage in 1999, 2001 and 2005, respectively. Pursuant to the statutory presumption, all three properties are deemed to be marital property.    In addition to the real property acquired during the marriage, both parties also acquired retirement benefits throughout the duration of the marriage. The Court found that to the extent the benefits were accrued during the marriage, the retirement benefits were marital property.
      Turning to the unique circumstances of this case, the Court considered the economic partnership, as created by the parties in this marriage. While the living arrangements of the parties from March 1997 through May 2005 was disputed, it was undisputed that from the outset of the marriage the parties agreed not to treat the marriage as an economic partnership. While the document signed on March 4, 1997, was not a pre-nuptial agreement, as it did not satisfy the requirements for a pre-nuptial agreement as required by DRL 236(B)(3), the written signed document evinced the intent of the parties to forego any legal claim each party may have to the other party's assets in the event that the marriage was unsuccessful. While the Plaintiff testified that the agreement only concerned the property owned prior to the marriage, the evidence presented established that the parties maintained separate finances throughout the life of the marriage. Although Plaintiff testified that the parties held one joint account until approximately 2004, she failed to present evidence to establish the existence of that or any joint account. Plaintiff did not contribute to the down payment or mortgage payments nor made any spousal or homemaker contribution on any of the properties purchased by Defendant.  Moreover, while Plaintiff testified that the parties filed joint tax returns during the early years of the marriage, until approximately 2004, she failed to present any joint tax returns for any year during the marriage.
In addition to maintaining separate bank accounts, the parties also conducted their real estate investments and business endeavors separately. The parties' separate real estate dealings evinced an intention to maintain separate financial accounts and investments consistent with the document written and signed on March 4, 1997. Plaintiff's testimony of the parties' intent was inconsistent with the parties' actions. The manner in which the parties conducted their real estate endeavors was inconsistent with the economic partnership theory.
Supreme Court observed that Courts have held in matrimonial proceedings where parties conduct themselves in a manner inconsistent with the economic partnership, the Court may find that equitable distribution of property is not warranted (see  Duspiva v. Duspiva, 181 A.D.2d 810, [2d Dept 1992];  Miller v. Miller, 4 AD3d 718, [3d Dept 2004];  Galvin v. Galvin, 20 AD3d 550, [2d Dept 2005] ). The parties began their marriage with an agreement that neither party would pursue legal action to claim the other party's assets. For the duration of the marriage, the parties lived in a manner consistent with the terms of that the document they wrote and signed. Although the parties resided in the same residence, 130-33 Street property, the Court found that the parties continued to conduct themselves in a manner consistent with the terms of the document signed on March 4, 1997, and conducted themselves in a manner inconsistent with the typical economic partnership and, therefore, equitable distribution of the property was not warranted.
Plaintiff presented evidence and testimony to establish that she purchased furniture for the residence at 130-33 221st Street  in the sum of $11,734.23. Plaintiff further testified that although she left the residence in July 2007 Defendant did not allow her to remove the furniture from the residence. In light of the parties' agreement and conduct consistent with the agreement, the Court finds that the furniture purchased for the 130-33 221st Street residence is property of Plaintiff. However, as the furniture has remained in Defendant's possession since 2007, Defendant had to pay Plaintiff for the cost of the furniture. Defendant was directed to pay Plaintiff $11,734.23 for the furnishings in the residence.
Plaintiff sought counsel fees. According to Plaintiff's testimony, in 2009, she earned approximately $70,000.00 from her employment at the hospital and an additional $20,000.00 from her real estate businesses. Additionally, she testified that for the year 2010, she anticipated earning approximately $70,000.00 from the hospital and has already derived $15,000.00 from her real estate businesses. Plaintiff earned a minimum of $85,000.00 in 2010. Defendant's Amended Statement of Net Worth indicated that Defendant's monthly income was $12,707.44. While Defendant's income was greater than that of Plaintiff, throughout the duration of the marriage, the parties maintained separate finances and Plaintiff was able to meet her financial obligations without the assistance of Defendant. Considering the unique circumstances of this case, Plaintiff's request for counsel fees was denied.

Temporary Maintenance Guidelines Income Cap Raised from $500,000 to $524,000.

Temporary Maintenance Guidelines Income Cap Raised from $500,000 to $524,000.
The "cap" on each spouses annual income, to be utilized in calculating temporary maintenance orders, has increased from $500,000 to $524,000 effective January 31, 2012 in accordance with Domestic Relations Law § 236 [B][5-a][b][5] . (See Temporary Maintenance Guidelines Worksheet, revised January 31, 2012 at www.nycourts.gov/divorce/TMG-worksheet.pdf or Temporary Spousal Maintenance Guidelines Calculator, revised January 31, 2012 at www.nycourts.gov/divorce/calculator.pdf)  Beginning January 31, 2010 and every two years thereafter, the income cap increases by the product of the average annual percentage changes in the consumer price index for all urban consumers (CPI-U) as published by the united states department of labor bureau of labor statistics for the two year period rounded to the nearest one thousand dollars. The office of court administration is required to determine and publish the income cap. See Domestic Relations Law § 236[B], [5-a][b][5].

Important New Decisions - February 26, 2012

Supreme Court Holds Once a Party Has Stated under Oath That the Marriage Has Been Irretrievably Broken for a Period of at Least Six Months, the Cause of Action for Divorce Has Been Established as a Matter of Law and There Is No Defense

In Townes v Coker, --- N.Y.S.2d ----, 2012 WL 444054 (N.Y.Sup.) the parties were married on June 12, 1981 and had three emancipated children. On October 6, 2008, Wife commenced an action for divorce against Husband. In her verified reply the Wife consented to the entry of the Judgement of Divorce based on Husband's counterclaim for constructive abandonment. On March 23, 2009, the parties executed a Stipulation, "So-Ordered" by Hon. Anthony J. Falanga, wherein Wife agreed to discontinue the 2008 action so that Husband may commence his own action on the grounds of constructive abandonment. Pursuant to the terms of the March 23, 2009 Stipulation, on or about April 8, 2009, the Husband commenced an action for divorce based upon the grounds of constructive abandonment. (Action No. 1). The Wife served a Verified Answer consenting to a divorce on the grounds of constructive abandonment. On or about March 21, 2011 the Husband made a motion seeking to discontinue Action No. 1. The Court denied Husband's motion. On or about February 15, 2011 the Wife commenced Action No. 2 and moved to consolidate Action No. 1 and Action No. 2 pursuant to CPLR 602 which the Court granted. The wife then moved Summary Judgment with respect to her cause of action alleged in Action No. 2, based upon the irretrievable breakdown of the marriage between the parties for at least six (6) months. The Wife's cause of action in Action No 2 was predicated upon the "no-fault" ground for divorce established in DRL 170(7), the irretrievable breakdown of the relationship of the parties. The Wife's Verified Complaint (Action No. 2) stated in relevant part: 11. The grounds for divorce are as follows: Irretrievable Breakdown of the Relationship (DRL Sec. 170(7)): The relationship between the Plaintiff and Defendant has been broken down irretrievably for a period of at least six (6) months. In opposition to Wife's application for summary judgment as to grounds, the Husband categorically denied his Wife's claims that the marriage had broken down irretrievably. The Supreme Court found that the Legislature did not enact a defense to this cause of action and courts cannot employ statutory construction to enact an intent that the Legislature did not express. Thus, neither the Husband, nor the Court, may create a defense where it is clear that the Legislature intentionally declined to do so. See, Pajak v. Pajak, 56 N.Y.2d 394, 452 N.Y.S.2d 381 (1982). Since the Wife stated "under oath" that the marriage is irretrievably broken, there was no basis for directing a trial with regard to this action of action for divorce. DRL 170(7) states that a divorce may be granted where: (7) The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. Thus, once a party has stated under oath that the marriage has been irretrievably broken for a period of at least six months, the cause of action for divorce has been established as a matter of law. The Court declined to follow the holding in Strack v.. Strack, 31 Misc.3d 258, 916 N.Y.S.2d 759 (Sup.Ct., Essex Cty., 2011), which held that a husband has the right to a trial on the "no fault" ground asserted by Wife. Also, see Schiffer v. Schiffer, 33 Misc.3d 795 (Sup.Ct. Dutchess Co., 2011). Supreme Court held that pursuant to DRL §170(7), once either party states under oath that the marriage has been irretrievably broken for at least six months, the grounds are no longer at issue and there is no right to a trial, by jury or otherwise. The entire purpose of the statute was to permit the Court to grant a divorce without requiring a trial. It noted that in AC v. DR, 32 Misc.3d 293, 305, 927 N.Y.S.2d 496 (Sup.Ct. Nassau Co., 2011), Justice Falanga stated the plaintiff's self-serving declaration about his or her state of mind is all that is required for the dissolution of a marriage on grounds that it is irretrievably broken. In the court's view, the Legislature did not intend nor is there a defense to DRL 170(7). Notwithstanding the foregoing and assuming arguendo, that the Husband was entitled to a defense regarding DRL 170(7), here the Husband's general denial of Wife's allegations that the marriage was broken down irretrievably was belied by his sworn statement in his Verified Complaint (Action No. 1) in which he stated: Continuing for a period of more than one (1) year immediately prior to the commencement of this action, defendant has continuously refused to have sexual relations with the plaintiff despite plaintiff's repeated requests to resume such relations. Based upon the Husband's sworn admission that his Wife has refused to have sexual relations with him for at least one (1) year despite his repeated request for same, it was difficult for this Court to imagine a better example of a irretrievable breakdown of the marriage relationship where one spouse continually refuses to have sexual relations with the other spouse for a period of at least one year. Here, the Husband was bound by his own sworn admission contained in his Verified Complaint, thereby eliminating any triable issues of fact for the Court to determine.



UCCJEA Requires Court to Communicate with Sister State Court Where Custody Actions Commenced in Two States

In Guzman v Guzman, --- N.Y.S.2d ----, 2012 WL 401081 (N.Y.A.D. 2 Dept.) in November 2009, the mother commenced a proceeding, seeking to modify thecustody and visitation provisions of a 2008 Florida judgment of divorce, entered upon the parties' stipulation, which awarded the father primary residential custody of the child. Before any determination could be made in this proceeding, the father relocated with the child to Florida. Thereafter, on December 22, 2009, the Family Court issued a determination, in effect, dismissing the petition for lack of jurisdiction, and it advised the mother to seek relief in Florida. However, when the mother subsequently commenced a custody proceeding with respect to the child in Florida, the Florida court determined that Florida was an inconvenient forum and that New York was the more appropriate forum, and it stayed the custody proceeding commenced in the Florida court. The mother then moved in the Family Court, Queens County, to vacate the Family Court's determination dated December 22, 2009. Without consulting with the Florida court, the Family Court denied the motion in an order dated March 2, 2011. The Appellate Division held that under the circumstances of this case, the order dated March 2, 2011, had to be reversed, that branch of the mother's motion to vacate the determination dated December 22, 2009, granted, the petition reinstated, and the matter remitted to the Family Court, for further proceedings. At the time the mother commenced this modification proceeding in November 2009 the Family Court, Queens County, had jurisdiction over it pursuant to Domestic Relations Law §76-b, based on the fact that the parties and the child lived in New York, and none of them had resided in Florida for over a year. The child was enrolled in school in New York, her sister had resided in New York with the mother since 2007, the father had commenced a proceeding in New York to modify the custody provisions of the Florida judgment of divorce with respect to the sister, and the Family Court, Queens County, had obtained a forensic study of the parties for use in that proceeding. Therefore, the parties and the subject child had significant connections with this State, and it appeared that "substantial evidence [was] available in this state concerning the child's care, protection, training, and personal relationships" (Domestic Relations Law § 76[1][b][ii] ). Accordingly, New York had jurisdiction to modify the custody and visitation provisions of the parties' Florida judgment of divorce with respect to the subject child. Nonetheless, where custody proceedings relating to a child are pending in different states-in this case, New York and Florida-Domestic Relations Law § 76-e applies, and the courts of the two states must confer with each other. Since the Family Court made its initial determination, in effect, dismissing the petition in this proceeding, the father and the child apparently had resided in Florida. In view of these circumstances, upon remittal, the Family Court, Queens County, was directed to contact the Florida court so that the courts of the two states may confer with each other and determine which state was the more appropriate forum for the proceeding at this juncture.

　

important New Decisions - February 12, 2012

Child Support Cap Raised from $130,000 to $136,000

The "combined parental income amount" to be utilized in calculating child support orders has increased from $130,000 to $136,000 effective January 31, 2012. (See Child Support Worksheet (Form UD-8) revised January 2012). The amount of the "combined parental income" is established by Domestic Relations Law § 240 (1-b) (2) as the amount set forth in Social Services Law § 111-I (2) (b). Domestic Relations Law § 240 (1-b) (2) provides that the amount established shall be multiplied by the appropriate child support percentage and such amount shall be prorated in the same proportion as each parent's income is to the combined parental income. Social Services Law § 111-I (2)(b) provides that the 　$130,000 cap is increased automatically on January 31, 2012 and on January 31 every two years thereafter by the product of the average annual percentage changes in the consumer price index for all urban consumers (CPI-U) as published by the United States department of labor bureau of labor statistics for the two year period rounded to the nearest one thousand dollars. (See Bureau of Labor Statistics for its publications at http://www.bls.gov)



First Department Holds That Double Dipping Is Not Allowed Under Temporary Maintenance Guidelines
In Khaira v Khaira, --- N.Y.S.2d ----, 2012 WL 371997 (N.Y.A.D. 1 Dept.) the Appellate Division, in an opinion by Justice Saxe, considered the guidelines for awards of temporary spousal maintenance under Domestic Relations Law 236 (B)(5-a), particularly with regard to the circumstances in which the court may deviate from the guideline amount derived by formula (the presumptive award), and the procedures that must be undertaken to do so. The parties married on July 8, 2006. They had two sons, and the wife had a son from a previous marriage. In September of 2010, the husband voluntarily moved out of the marital residence, and in October 2010, the wife commenced the divorce proceeding. She moved for pendente lite support, asking for monthly maintenance of $11,500 and child support of $7,290, and a direction that the husband directly pay the carrying costs on the marital residence, child care expenses, and all health care expenses for the family.

The court observed that to determine temporary maintenance, the motion court had to apply Domestic Relations Law 236(B)(5-a), which had become effective on October 12, 2010. The court determined the presumptive award to be $11,500 per month, awarded the wife $13,870 in unallocated spousal and child support, tax deductible to the husband, and required the husband to directly pay to the lender the monthly mortgage payments on the marital residence in which the wife and the children continue to reside, and the health care insurance premiums and unreimbursed health care expenses for the family, including his stepson. It also directed the husband to pay the wife interim counsel fees of $42,000.

On appeal, the husband contended that the motion court awarded the wife an excessive sum because it failed to consider his actual, documented net monthly income and cash flow, and incorrectly calculated his annual income by including non-recurring earnings such as a one-time bonus, and illiquid, noncash equity compensation. He challenged the counsel fee award on the ground that the wife's mother guaranteed her counsel fee obligation, and counsel has been paid in full to date. He also challenged the directive that he pay the health care expenses of his stepson.

Justice Saxe observed that Domestic Relations Law 236(B)(5-a) reflects a substantial change in the Legislature's approach to temporary maintenance. The previous spousal maintenance provision gave the court great leeway, directing only in general terms that it order maintenance"in such amount as justice requires," considering the parties' standard of living during the marriage, the reasonable needs of the non-monied spouse and the monied spouse's ability to pay, and with regard to a list of factors such as the parties' respective earning capacities (former DRL 236[B][6] ). Courts applying that provision observed that pendente lite maintenance was awarded to "tide over the more needy party, not to determine the correct ultimate distribution and to ensure that a needy spouse is provided with funds for his or her support and reasonable needs" The new provision, rather than aiming merely to "tide over" the non-monied spouse, creates a substantial presumptive entitlement. He noted that the motion court properly followed the initial procedures. It applied the $500,000 cap to the husband's income, and using $60,000 as the wife's income, based on the monthly payments she acknowledged receiving from her parents, performed the two calculations: for the first, it subtracted 20% of $60,000 ($12,000) from 30% of $500,000 ($150,000), arriving at $138,000; for the second, it calculated 40% of $560,000 ($224,000), then deducted $60,000, arriving at $164,000. It properly treated the lesser of these two calculations, $138,000, as the guideline amount. At that point, the court observed that the parties' 2008 joint income tax return reflected an adjusted gross income of $851,549, almost all from the husband's earnings at the investment firm the Blackstone Group, and that their 2009 tax return reflected an adjusted gross income of $1,063,426, also almost entirely from the husband's employment. However, it did not then proceed to explicitly discuss whether an additional amount of maintenance was warranted from the portion of the husband's income that exceeded the $500,000 cap, as required by 236(B)(5-a)(c)(2). Instead, the court next examined the wife's submitted monthly expense budget of approximately $21,267 and concluded that with the exception of claims for $1,000 for gifts and $225 for charitable contributions, the remainder ($20,041), which included $4,125 for the cost of a nanny, represented the wife's and the children's reasonable needs. In essence, the court simply ruled that the husband should pay the full amount of the wife's and the children's claimed needs, partly through his payment of the mortgage on the marital residence ($5,317) and the family's health care premiums and unreimbursed medical expenses ($855), and partly through monthly payments to the wife of $13,870. In other words, the court awarded the wife $20,041 in unallocated spousal and child support without setting out a calculation of appropriate child support and without discussing or even mentioning the factors in Domestic Relations Law 236[B][5-a][c][2] ).

In considering the husband's challenge to the award, the Court rejected his suggestion that his support obligation should have been calculated based solely on his base pay, without reference to his bonus, or that the court should have taken into consideration his net pay. The statute instructs the court to base the calculations on the payor's gross income as reported in his federal income tax return, and the motion court properly did exactly that, correctly treating the husband's bonuses as income and ignoring his reliance on his net income (which can be manipulated with deductions and deferred compensation). However, the motion court did not strictly comply with the requisites of Domestic Relations Law 236 (B)(5-a).

Justice Saxe observed that no language in either the new temporary maintenance provision or the CSSA specifically addresses whether the statutory formulas are intended to include the portion of the carrying costs of their residence attributable to the non-monied spouse and the children. The new law "does not factor in child support issues or payment of household expenses. In the absence of a specific reference to the carrying charges for the marital residence, the Court considered 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. The Court believed that the new approach of calculating spousal support payments to the non-monied spouse by means of a formula is intended to arrive at the amount that will cover all the payee's presumptive reasonable expenses. By calculating the guideline amount and then simply adding the direct mortgage payment on top of that, the motion court awarded more than the amount reached by the formula, without providing the required explanation.

Justice Saxe indicated that it is possible that directing payment above and beyond the guideline amount may be appropriate in certain situations. For instance, the direct mortgage payment might be justifiable as additional support when the payor's income exceeds $500,000 and the applicable factors listed in Domestic Relations Law 236 (B)(5-a)(c)(2)(a) are taken into account; or, depending on the size of the mortgage payment, perhaps only part of it should be treated as the payee's housing costs, and the remainder should be treated as the upkeep of a marital investment. He suggested that perhaps there are other reasons why the guideline amount is unjust or inappropriate. "It may well be that in this case, consideration of the enumerated factors, such as the stark difference in the parties' current earning capacities, their standard of living during the marriage, and the need to pay for day care, would justify the motion court's direction that the husband pay as additional maintenance a specified portion of his income beyond the $500,000 cap."

Because the statute expressly requires the court to both make and explain that determination (DRL 236[B][5-a][c][2][b] ), the Appellate Division could not permit the award to remain as it stood. While the ultimate support award may well be appropriate, it must be appropriately supported and explained. The Court therefore modified so as to vacate the support award and remanded the matter for a reconsideration of the award in light of the directives of Domestic Relations Law 236(B)(5-a). It also vacated the portion of the order that placed responsibility on the husband for his stepson's health care insurance and unreimbursed health care expenses. There was no allegation that the stepson was a recipient of public assistance or that he was in danger of becoming a public charge, and no other legal rationale for imposing that obligation on the husband.

The Court upheld the award of counsel fees to the wife as the "less monied spouse" (Domestic Relations Law 237[a] ). Justice Saxe observed that the statute provides that "[p]ayment of any retainer fees to the attorney for the petitioning party shall not preclude any awards of fees and expenses to an applicant which would otherwise be allowed under this section"; the husband's argument that no award of fees was appropriate because the wife's mother paid her attorney's retainer fee failed to rebut the presumption in favor of the award.

Comment:

Counsel for the spouse paying temporary maintenance should request, in his opposing papers, that the temporary maintenance order contain a provision directed the spouse who is awarded temporary maintenance to pay the "carrying costs of the marital residence" . Without such a direction, the spouse receiving the temporary maintenance award will not be under any court ordered obligation to pay those expenses, even though the temporary maintenance award includes sums for their payment, and the credit rating of the payyor spouse may suffer or the mortgage may go into foreclosure..

Counsel for a spouse seeking temporary maintenance should to make sure, in preparing an application for temporary support, that the "presumptive award" will be enough to permit his client to pay the "carrying costs of the marital residence." The application for temporary maintenance should ask the court to specify what items are considered "carrying costs of the marital residence".