The following papers were read on this motion for Pendente Lite Notice of Motion/Petition/Order to Show Cause — Affidavits — Exhibits 1-3 Notice of Cross-Motion — Affidavits — Exhibits 4-6 Answering Affidavits — Exhibits 7-9 Replying Affidavits — Exhibits 10-12 DECISION AND ORDER Plaintiff Linda Warshaw (the Wife) moves by order to show cause for an order pursuant to New York Domestic Relations Law (DRL) §§236(B) and 240, directing defendant Steven Warshaw (the Husband) to pay monthly pendente lite maintenance in the sum of $7,778.38 and to pay the monthly pendente lite child support in the sum of $7,218.34 for the parties’ three minor children, together with 80 percent of all Child Support Standards Act (CSSA) add-ons, in accordance with the guidelines calculation based on the income calculated by this court in its decision and order dated August 22, 2018. In the alternative, pursuant to DRL §§236(B) and 240, the Wife is seeking an order directing the Husband to pay monthly pendente lite maintenance in the sum of $11,871.03 and to pay monthly pendente lite child support in the sum of $10,927.97 for the children, together with 80 percent of all CSSA add-ons, based upon a recalculation of the Husband’s income premised upon newly discovered evidence. As another alternative, pursuant to DRL §§236 (B) and 240, the Wife is seeking an order making a needs or lifestyle-based maintenance and child support award, as the Husband’s true income cannot be ascertained. The Wife also moves, pursuant to DRL §237, for an order directing the Husband to pay her $250,000 as and for counsel fees for this action and $12,587.07 in appellate counsel fees. The Wife further requests an order directing the Husband to pay $25,000 to retain Heidi Muckler (“Muckler”), a forensic expert. Lastly, pursuant to CPLR §3025, the Wife is seeking leave to file an amended complaint to include additional causes of action that accrued or of which she became aware during the pendency of the divorce action. The Husband cross-moves for downward modification of his temporary maintenance obligation and opposes the remainder of the Wife’s requested relief. In the event that the Wife is granted leave to amend the complaint, he is requesting to further depose the Wife. BACKGROUND AND FACTUAL ALLEGATIONS The parties married on September 4, 2006 and have three children: [REDACTED]. The Wife filed for divorce on March 16, 2017. The Husband is the “Chief Executive Officer and President of a business, the Warshaw Group, which designs and provides software to institutional clients.” The Husband’s aff. in opp., 7. Mr. Warshaw states that he founded a technology firm in 1996 with a partner. After buying out the partner in 1999, the Husband began to operate the Warshaw Group in its current form. On January 2, 2006, prior to the marriage, the Husband entered into a shareholder’s agreement delineating that the Husband would own 70 percent of the company and the other 30 percent would be owned by the Husband’s brothers (“Brothers”), [REDACTED] Warshaw and [REDACTED] Warshaw. In 2005, the Husband bought an investment property in Woodside, Queens, and was the sole owner of Woodside 48, LLC, the entity owning the property. Pursuant to an amended operating agreement, also executed on January 2, 2006, the Brothers were provided with 15 and 30 percent ownership interests, respectively, with the Husband receiving a 55 percent ownership interest. Ms. Warshaw did not work during the marriage and has no independent income. She stated, “[o]nce we were married, My Husband and [I agreed] that I would stay home and tend to the needs of our three (3) Children, including overseeing their performance in school and daily routines.” The Wife’s aff. in supp., 11. During the marriage, the Wife did obtain a Master’s Degree in Public Administration. The August 22, 2018 Order and Appeal In May 2018, the Wife moved for an order, in pertinent part, directing the Husband to pay pendente lite spousal support in the amount of $4,375 per month and many other expenses, as well as $20,000 to her attorneys in interim counsel fees. At that time, the parties were living together. On August 22, 2018, this court ordered the Husband to pay $11,668 per month to the Wife as temporary maintenance and directed the Husband to continue to pay 100 percent of the children’s unreimbursed non-elective medical, pharmaceutical, optical, dental and mental health services. The Husband was also ordered to maintain health insurance for the Wife and the children. The Husband reported that he had been paying the total monthly cost of $2,200 for the nanny and housekeeper. The Wife was ordered to reimburse the Husband for 50 percent of the cost of the rent, utilities, nanny and housekeeper bills from her maintenance payments, while she lived in the marital residence. The decision set forth the details of how the court arrived at the temporary maintenance award. In relevant part, the court imputed $0 income to the Wife (payee). Regarding the Husband’s income, in brief, the court listed the Husband’s reported income on his W-2′s for the years 2012-2017 and noted that the income throughout the years varied. For example, the gross pay in 2014 and 2015 was $804,522 and $785,498, while the gross pay for 2016 and 2017 was $277,374 and $277,093. The court stated that it was not provided with an updated statement of net worth for purposes of determining the Husband’s income. It found that the “lack of current updated financials complicates the court’s analysis and certainty about the Husband’s current income, expenses, or resources, especially given that the Husband has a history of varying annual income…” See Wife’s Exh. 1, par. 3. For example, the June 19, 2017 statement of net worth listed his expenses as $340,728, which included the Wife’s and children’s expenses, although the fees paid to both parties’ attorneys were not included in the figure. Further, as the Husband “is the 75 percent owner of his business, the Warshaw Group…[he] may (or may not) have at least some control over how much money to take out of his business each year as personal income.” Id. At the time of the financial submissions, the Husband did not place a value on the Warshaw Group or on Woodside 48, LLC, although the building located at 48th Street was purchased for $750,000. The Husband also stated that he received supplemental income from Woodside 48, LLC, of which he has a 55 percent interest, and from other investments. The Husband listed other assets and discretionary expenses such as boating and tennis membership. The statement of net worth indicated that his voluntary pre-tax 401(k) contributions were actually greater in the years during which his income was less. The court first calculated the temporary maintenance payment based on the Husband’s capped income of $184,000. It declined to award maintenance based on that amount, and discussed the reasons why the income should be adjusted to a higher amount. It then arrived at the amount of $466,703 as income for determining the amount of maintenance as this was the average of the submitted income from 2012 through 2017, minus FICA and NYC local tax.1 The court noted that the Wife reported no independent income and listed assets valued at a total of $6,100. The Wife also stated that she incurred $13,000 in debt to her family members. The court held that, “[a]t this time, there is not sufficient basis to impute income to the Wife, who, the parties agreed, has not worked in many years and has stayed home with the children, the youngest of whom is currently two years old.” Id. at 9. The Wife’s request for an award of interim counsel fees in the amount of $20,000 was denied, as the Wife’s attorney “failed to attach his current retainer or any itemized bills” and only provided some documentation in reply papers. Id. at 14. The Husband’s Appeal of the August 22, 2018 order The Husband appealed the portion of the August 22, 2018 order that awarded the Wife pendente lite spousal maintenance in the amount of $11,668 per month. The Appellate Division, First Department affirmed this court’s determination. It held, in relevant part, that the Husband’s arguments are “largely academic,” because, after deducting the Wife’s rent and other payments, the Wife’s net monthly award is $4,307 per month. Warshaw v. Warshaw, 173 AD3d 582, 583 (1st Dept 2019). This amount is less than she originally sought and “also less than the $4,600 per month that she, to whom the court appropriately imputed zero income, and who is not receiving child support, would receive upon application of the statutory guideline formula to defendant’s income capped at $184,000.” Id. at 582-583. The Appellate Division held that “[d]efendant correctly argues that the court should not have relied upon an income average.” Id. at 583. Nevertheless, the Appellate Division found the Husband’s arguments to be unavailing. It held that this court “appropriately looked beyond defendant’s most recent tax return to consider his earnings history.” Id. The Appellate Division also found that it was reasonable to consider the “possibility that defendant, whose income declined precipitously after plaintiff commenced this action, might wield some control over the timing and amount of his compensation.” Id. The Appellate Division also noted “the ambiguities surrounding defendant’s actual financial situation…” Id. at 584. It “reject[ed] defendant’s contention that the court misapplied [DRL] §236(B)(5-a)(d)” and concluded that the trial court “articulated the factors set forth in subsection (h)(1) upon which it relied in setting its award.” Id. at 583. Further, the Appellate Division held that it was proper to “decline…to impute income to plaintiff.” Id. at 583. Although the Wife obtained a Master’s Degree in 2008, she has not worked in many years. The Husband failed to offer any proof of income earned by the Wife prior to leaving the work force to have children. DISCUSSION Pendente Lite Maintenance Pursuant to the court’s August 22, 2018 order, the Wife has been receiving a monthly amount of $11,668.00. Given the extent of discovery in this action, as well as the proximity to a full financial trial, the court would normally have considered denying the motion and cross-motion, subject to the plenary trial; however, given the material change of circumstances, as the Wife and children have moved out of the marital residence, significantly changing the constellation of expenses, and requiring a pendente lite award of child support to the nonmonied spouse, who is deemed the custodial parent for child support purposes [Al E. v. Joann E., 55 Misc. 3d 1212(A) [N.Y. Sup. Ct., Kings County 2017] [citing Bast v. Rossoff, 91 N.Y.2d 723, 732 [1998]], the court will address further the merits of the motion and cross-motion. The parties no longer reside in the marital residence and the Wife is now paying 100 percent of the rent, utilities and other charges associated with her rental apartment. As a result, she is requesting to change the amount of spousal support she receives and is also requesting to receive child support. Ms. Warshaw provides three alternate ways to compute the spousal and child support. The Wife provides several of the same theories initially provided to the court in May 2018, for why she believes that the Husband’s income is higher than reported and why it also exceeds the amount the court initially imputed to the Husband in the August 22, 2018 order. For example, she states that his reported expenses from 2017 were $340,728.00, with a reported income of $255,453.00. In addition, his reported income failed to include the attorneys’ fees paid, among other expenses. As the court discussed in the August 22, 2018 order, the Husband owns 55 percent of 48 Woodside LLC, while the Brothers own the remainder. The Wife states that the Husband’s income is higher than $466,703, as the court had previously not included this 55 percent interest in 48 Woodside LLC, or the other investment income in its calculations. Plaintiff asserts that a full 100 percent supplemental income from 48 Woodside LLC should be imputed to the Husband because he paid for 100 percent of the costs, expenses, and renovations of the building. She continues that any depreciation, tax credits, and other expenses should be added back to the Husband’s income. “In January 2006…My Husband changed the entire structure of his business and inexplicably entered into a Shareholder Agreement diluting his ownership interest in the Warshaw Group and purporting to transfer 30 percent of his 100 percent ownership interest to his two Brothers for no legitimate business purpose.” The Wife’s aff. in supp., 9. The Wife alleges that the Husband receives more income from the Warshaw Group than he reports, as he is the controlling shareholder and “may have control over how much of the business’ income is claimed as his income…” Id., 3 (F). She adds that at least 70 percent of $1,292,881 should be imputed as income to the Husband, as this is the purported retained earnings. According to the Wife, the Husband has created sham business dealings with the Brothers to make it appear that he receives less money than he actually does, “which is precisely why his spending exponentially exceeds his purported income.” Id. 3 (L). The Wife alleges, among other things, “[m]y Husband claims tens of thousands in business expenses for travel, yet all his clients are in New York.” Id., 24. Further, the Husband’s income “suspiciously” decreased in two years leading up to the divorce, despite the fact that the company “still maintained the same major city contracts….” Id., 25. The Wife claims that she is “under constant financial duress and persistently worried about being able to meet [her] monthly obligations….” The Wife’s aff. in opp., 14. Ms. Warshaw contends that her husband continues to mislead the court regarding his true income and earning capacity. The Wife also alleges that the Husband refuses to pay for the children’s unreimbursed medical expenses. She states the following, in pertinent part: “[M]y Husband still manages to afford to pay for a nanny during his own parenting time, travel constantly with and without our Children, and continues to live the same lavish lifestyle to which he is accustomed, which our Children get to live only half of the time while they are under his care. While I have been forced to forego all luxuries, including but not limited to, the use of nanny, spa treatments, massages, self-care, and even therapy.” Id.,
