PENDENTE LITEDECISION AND ORDERNOTICE OF RIGHT TO SEEK MODIFICATION OF CHILD SUPPORT ORDER This decision contains a child support order. The parties are advised that pursuant to the Low Income Support Obligations and Improvement Act of the Laws of 2010, contained in Domestic Relations Law §§236(B)(7)(d) and 236(B)(9)(b)(2), unless the parties have specifically opted out of subparagraph (2) or (3) below in a validly executed agreement or stipulation, either party has the right to seek a modification of this child support order upon a showing of:1. a substantial change of circumstances; or2. that three years have passed since the order was entered, last modified, or adjusted; or3. there has been a change in either party’s gross income by 15 percent or more since the order was entered, last modified, or adjusted, provided that the reduction in income was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability, and experience.The parties are further advised that, pursuant to Domestic Relations Law §236(B)(9)(b)(2), child support arrears that have accrued prior to the date of application to annul or modify any prior order or judgment as to child support may not be reduced or annulled.The following papers, numbered 1 to 64, plus 11 additional pages submitted by counsel after the motion was deemed fully submitted, were read on Plaintiff’s Order to Show Cause for pendente lite relief:Order to Show Cause-Supporting Affidavit of Jillian Ayash-Affirmation ofWilliam V. Cally, Esq 1-32Exhibits A-N-Memorandum of LawAffidavit in Opposition of Gino Chieffallo-Affirmation of ConstantinoFragale, Esq 33-50Exhibits A-GReply Affidavit of Jillian Ayash-Affirmation of William V. Cally. Esq. 51-61Exhibits O-RSur-Reply Affidavit of Gino Chieffallo 62-64Exhibits A-CCorrespondence from Constantino Fragale, Esq. dated November 8, 2018 & November 20, 2018 with Plaintiff’s Earnings Statement and Deposition Transcript 8 pagesCorrespondence from William V. Cally, Esq. dated November 30, 2018 3 pagesUpon reading the foregoing papers, it is ORDERED that the motion is decided as follows:BackgroundPlaintiff Jillian Ayash (“Plaintiff”) and Defendant Gino Cheiffallo (“Defendant”) were married on March 27, 2004. There is one child of the marriage, Devin Jade Chieffallo, born November 1, 2004 (the “Child”). This action for divorce was commenced by Plaintiff on April 27, 2018 (the DOC”). On August 9, 2018, Plaintiff was granted permission pursuant to Rule E of the Westchester County Supreme Court Matrimonial Part Operational Rules to make application before this Court for temporary custody, pendente lite maintenance, child support, counsel fees, and for a Temporary Order of Protection. Plaintiff filed an Order to Show Cause seeking the aforementioned relief on August 20, 2018. Defendant has filed papers in Opposition. A Reply was submitted, and with the permission of the Court, a Sur-Reply and pertinent correspondence on behalf of both parties followed.Temporary CustodyOn March 27, 2018, prior to the date of commencement, Plaintiff alleges to have fled the Marital Residence to her mother’s house based upon a series of alleged threats and incidents of unspecified dates, with the exception of threats made on March 27th, that caused her to fear for her safety and the safety of her child. (Pl. Aff. In Supp.
6-12). On March 28, 2018, Plaintiff filed Petitions in Westchester County Family Court alleging that Defendant had committed a Family Offense and for Temporary Custody of the Devin. An ex-parte Temporary Order of Protection was issued directing Defendant to refrain from communicating with Plaintiff by any means, and from committing any offense against her. The Temporary Order of Protection remained in effect until April 3, 2018. (Pl. Exh. E & F), and was thereafter extended to July 31, 2018. (Pl. Exh. G). On August 22, 2018, a Temporary Order of Protection was issued by the Supreme Court, Westchester County, which contained the identical restrictions on Defendant’s communication and behavior as did the Temporary Order issued by Family the Family Court. The Supreme Court Order expired on October 22, 2018.On April 15, 2018 Plaintiff rented a two bedroom apartment within walking distance to the Devin’s school, which has sufficient space for Devin and also for Plaintiff’s older children of a prior marriage to stay. (Pl. Aff. 33). According to Plaintiff, she has been Devin’s primary caregiver since birth, and has attended virtually all medical and school appointments and events. (Id. 20). She has also been the parent who has made the major as well as daily decisions in Devin’s life. (Id. 21). She therefore contends that if she were granted temporary custody of Devin with reasonable access by Defendant, her suggested arrangement would essentially mirror the status quo that has existed throughout Devin’s life. (Id. 24).This Court is aware that while Devin principally resides with Plaintiff, Devin has reasonable access time with her father which includes overnights on Wednesday nights and weekends, as well as a variety of activities together, homework time, Defendant’s involvement with Devin’s guidance counselors and his commitment to assist Devin socially and emotionally. (Sur-Reply of Deft. 3). No facts have been presented to this Court to justify a change in the existing arrangement and make an award of custody at this time. Such application is appropriately made at the time of trial where the trial court can conduct a full evidentiary hearing to determine the best interests of the child. Accordingly, Plaintiff’s request for an Order of temporary custody is denied, without prejudice.Pendente Lite Maintenance and Child SupportPlaintiff’s is seeking an Order directing Defendant to pay the sum of $2,626 per month as and for Pendente Lite maintenance and the sum of $1,569 per month as and for Pendente Lite child support. She contends that the combined support of $4,195 is arrived at using Defendant’s 2017 gross income of $184,736 as reflected on the W-2 Record from his employment at Memorial Sloan Kettering Cancer Center, and Plaintiff’s 2017 gross income $20,250 as reflected on the W-2 Record from her employment at Ideal Corporate Funding, Inc. (Pl. Exh. I, page 31; Pl. Exh. N). At the time of the instant application, no discovery had been conducted. Plaintiff represented that her 2017 income was $20,500 per year in addition to the sum of $14,400 in annual child support she receives from her former husband.Since the motion was deemed fully submitted, discovery has begun and Plaintiff’s deposition was taken on November 7, 2018. The Court and Plaintiff’s counsel were provided with three pages of the deposition transcript, pages 188-190, and an Earnings Statement issued to Plaintiff by her employer, Ideal Corporate Funding Corp, a corporation owned and controlled by Plaintiff’s parents. The Earnings Statement reflects that as of August 15, 2018, Plaintiff had gross earnings from Ideal Corporate Funding Corp of $44,666.64, with a bi-monthly paycheck of $2,083.33 for working 25 hours per week at an hourly rate of $42 per hour. Utilizing the bi-monthly salary of $2,083.33 for the remaining nine bi-monthly pay periods of 2018, Plaintiff will earn an additional $18,749.97, making her total salary $63,416.61 for 2018. In addition to her salary, Plaintiff received a single commission of $20,000 in June of this year and wire transfers from her employer totaling $14,500 which she admitted were not loans. The transfers and commission, coupled with the child support, increase her income to $112,316.61. Plaintiff also acknowledged at her deposition that there is no impediment to her working full time, except that she would “not be there” for her daughter.In making an award of pendente lite support, the court is required to establish the parties’ support obligation “as a function of the income that is, or should have been, reflected on the party’s most recently filed income tax return.” Wallach v. Wallach, 37 A.D.3d 707, 708 [2d Dept. 2007]; DRL §240 [1-b][b][5][I]. There are required deductions from gross income for social security and New York City and Yonkers income taxes.As an initial matter, Plaintiff does not dispute that Defendant’s base salary is $108,884, and only as a result of working substantial amounts of overtime in 2017 did his earnings rise to $184,736. (Def. Aff. 15). According to deposits reflected on bank statements from March 21, 2018 through June 20, 2018, Defendant’s net income or take-home pay for a three month period averages $9,439 per month. (Def. Exh. D; Id. 16). Defendant contends that he continues to pay all of the expenses for the marital residence, where he continues to reside, and for food when Devin is with him. In addition, Defendant provides clothing, pays for social activities and sports related expenses for Devin. (Id. 13), which expenditures Plaintiff has not challenged..According to Defendant’s Statement of Net Worth, his recurring monthly expenses include $4,000 for the marital residence, $301 for utilities, $165 for gas, and $350 for his vehicle. If he were required to pay the monthly support amount sought by Plaintiff while continuing to pay the current fixed obligations pertaining to Devin and the marital residence, he would be left with only the sum of $623 per month to pay insurance and buy food. (Id. 16).The essence of Defendant’s opposition is that several factors warrant a deviation in the guideline support calculated by Plaintiff. Defendant alleges that Plaintiff has dissipated assets in the year preceding the divorce. Specifically, in a period of twelve months before the action was commenced, Plaintiff removed the sum of $19,000 from a personal checking account at TD Bank titled solely in Defendant’s name and from which account all household expenses such as mortgage, utilities, insurance, credit cards, food, and clothing for the family as well as meals and all incidental expenses for Plaintiff’s older children from a prior marriage were paid. Defendant claims that the only sources of deposits into his personal TD checking account were his paychecks, inherited and rental funds of $12,000, and tax refunds of his withholding taxes. (Id. 9 c) i, iii & iv). Plaintiff removed $19,000 from this account through a series of unauthorized online scheduled transfers from this account into a joint saving account every two weeks at the rate of $200 per transfer, as well as miscellaneous additional transfers out of his account into the same joint savings account. Plaintiff then made transfers out of this joint savings account to her TD savings account #6832 or her TD checking account #5079. Defendant corroborates the online transfers with bank statements from the parties’ joint savings account from May 2017 through June 2018. (Def. Exh. B). Defendant alleges that subsequent to the commencement of the action, he confronted Plaintiff with the fact that she had withdrawn $3,000 from his personal account in June 2018 and she credited it back. (Def. Aff. 9 c). Defendant’s statement that Plaintiff did not deposit any of her earnings into this account, nor did she contribute to the household expenses during the entirety of the marriage, is unchallenged. (Id. ii). Defendant makes the further claim, unchallenged by Plaintiff, that Plaintiff had the bank stop sending paper statements of his checking account to his home and had the address on the savings account changed to her parent’s address. (Def. Sur-Reply Aff. 7). Plaintiff has not denied transferring and appropriating the funds in question for her own use.Defendant had opposed the support requested by Plaintiff based upon her lack of candor regarding her earnings history and earning potential. (Id. 11). Plaintiff works for Ideal Corporate Funding, Inc., a business owned by her mother and run by her father, and Defendant had maintained that Plaintiff’s true earnings are not reported on her W-2, and that he knows from past practices that Plaintiff receives payments, which can be thousands of dollars, for bonuses on “deals” she brings to her father’s company. (Def. Sur-Reply Aff. 4). Based upon Plaintiff’s deposition testimony, it is clear that Plaintiff receives, in addition to her salary which is three times greater than her declared 2017 income, additional income in the form of wire transfers from her parent’s company into her account. It is also clear, as Defendant has stated, that Plaintiff has the ability to earn commissions, and did in fact earn a $20,000 commission in June of this year.With regard to Plaintiff’s earning potential, it is undisputed that Plaintiff holds a Masters Degree in Early Education. While Plaintiff has elected to work part-time (25 hours per week) as a secretary in her parents’ company, Defendant contends that he has been advised by his attorney that according to the Bureau of Labor Statistics, the nation’s median salary of a Kindergarten, elementary school teacher or special education teacher is $57,000, and the median salaries in the various Westchester County school districts vary from a low of $82,587 to $135,699. Defendant refers to the following link in making ths claim: https://www.usnews.com/education/online-education/early-childhood-education-masters-degree.. (Def. Aff. 14). The Court notes that Plaintiff did not, in her Affidavits submitted to this Court, contest her ability to work full time in her field, and stated for the first time in her deposition that her only impediment to full time employment (whether at Ideal or in a setting of early education) is that she would not “be there” for her daughter.Plaintiff’s self-reported monthly expenses total $8,531, including, inter alia, food, shelter and clothing of $4,744 for herself and Devin; automobile expenses of $946; miscellaneous/recreational expenses of $616; and $2,030 per month in college costs for her children of a prior marriage. (Pl. Aff. 38; Pl. Exh. I). Plaintiff blames Defendant’s alleged threats, intimidation and anger which forced her to flee the Marital residence to the apartment in which she and Devin currently reside, and to have incurred the monthly costs associated therewith as well as pay $7,950 for two months of security and one month’s rent. (Id.
