DECISION & ORDER PROCEDURAL HISTORY The Plaintiff commenced this matrimonial action on September 2, 2020. There are two children of the marriage, J.N. (11/30/2002) and A.N. (2/16/2005). J.N. is currently enrolled at the College of Staten Island. The minor child A.N. is enrolled at Moore Catholic High School. On November 17, 2020, the Plaintiff filed an Order to Show Cause seeking alternative service of process. Subsequently, the Defendant was personally served and a Preliminary Conference was held on January 5, 2021. During the Preliminary Conference, the Defendant appeared virtually from the marital home, despite moving out in May 2019. As a result of Plaintiff’s request, on consent of the parties, temporary exclusive use and occupancy of the home was granted to the Plaintiff. Further, a temporary parenting order was issued granting joint custody to the parties, with residential custody to the Plaintiff, subject to Defendant’s parenting time. Appraisals for the parties’ pensions and marital home were also ordered. Immediately after the Preliminary Conference, the Defendant’s counsel, his brother, J.J.N., Esq., contacted Plaintiff’s counsel, while providing the Court with a copy of the letter. The letter stated that it was the “Defendant’s intention to have a neutral forensic expert appointed by the Court to conduct a custody/parental access evaluation of the minor child of the marriage, for the purpose of establishing custody, visitation, and Defendant’s exclusive possession of the marital home.” The Court advanced the case in light of the change in Defendant’s position regarding custody. On January 8, 2021, Michele Sileo, Esq., was appointed as attorney for the minor child A.N. and a forensic evaluation was ordered with psychiatrist Dr. Stephen Herman. PLAINTIFF’S MOTION The instant motion, Motion #002, was filed by Plaintiffs attorney on January 21, 2021. The motion sought (1) exclusive use and occupancy of the former marital residence; (2) child support from the Defendant; (3) contributions by the Defendant to the children’s educational expenses, including extracurricular activities; (4) contributions by the Defendant to the payment of marital debt and expenses, including car insurance and medical insurance premiums; (5) vacating or modifying the order of January 8, 2021 for a forensic; (6) disqualifying J.J.N., Esq., as attorney for the Defendant; (7) a protective order regarding discovery; (8) counsel fees; (9) and any such other and further relief as the Court deems just and proper. DEFENDANT’S MOTION On February 23, 2021, Defendant filed his opposition to Motion #002 as a cross-motion seeking various additional relief. Defendant did not have any opposition to granting Plaintiff (1) exclusive use and occupancy of the former marital residence; (2) child support from the Defendant; (3) contributions by the Defendant to the children’s educational expenses, including extracurricular activities; (4) contributions by the Defendant to the payment of marital debt and expenses, including car insurance and medical insurance premiums. Defendant’s counsel opposed his disqualification, and noted in his motion “be careful what you wish for, it might just come true,” when referencing that it “would be wise” for Plaintiff not to call him as a witness in the action. Defendant’s counsel explains in his opposition that he would represent his brother, J.N., “independent of my firm, that no one from my firm would be doing any work on his case…” Mr. J.J.N., Esq. then explained that if there was ever a custody hearing, he would retain a colleague to handle the task of questioning or deposing the minor child. Finally, in opposition to Motion #002, Defendant states that there was a decision made to withdraw subpoenas and non-party depositions were not pursued. DISCUSSION Exclusive Use and Occupancy “Courts are statutorily empowered to award one spouse temporary exclusive use and occupancy of the marital residence during the pendency of divorce proceedings. Such an order is appropriate only upon a showing that the relief is necessary to protect the safety of persons or property, or one spouse has voluntarily established an alternative residence and a return would cause domestic strife.” See Goldman v. Goldman, 185 AD3d 1012 [2d Dept. 2020]. During the Preliminary Conference, the Defendant was in the former marital residence, with the Plaintiff. The Plaintiff made the oral application for exclusive use and occupancy of the residence, as the Defendant had moved out in May 2019. Defendant stated that he still comes to the home to see the children and was in the home on the date of the Preliminary Conference to do laundry. As the Defendant established an alternative residence for himself, and the domestic strife was apparent during the Preliminary Conference, the order for exclusive use and occupancy was issued. The request for exclusive use and occupancy in the motion is hereby granted as moot. Child Support and Contributions “The Child Supports Standards Act provides the formulas to be applied to the parties’ income and the factors to be considered in determining a final award of child support. Courts considering applications for pendente lite child support may, in their discretion, apply the CSSA standards and guidelines, but they are not required to do so. See Vistocco v. Jardine, 116 AD3d 842 [2d Dept. 2014]. Counsel submitted their proposed pendente lite child support calculations and agreed upon the parties’ income. A pendente lite child support order was issued on March 3, 2021. Any “perceived inequity in the award of pendente lite child support can best be remedied by a speedy trial, at which the parties’ financial circumstances can be fully explored.” See Barra v. Barra, 138 N.Y.S.3d 377 [2d Dept. 2021]. The issue of child support above the CSSA cap is an issue that is reserved for the trial court. As directed at the Preliminary Conference, the parties must maintain the status quo of payments for the children’s educations at the College of Staten Island and Moore Catholic High School. The parties must pay their pro rata shares for the children’s medical insurance premiums. Further, the parties must pay for their respective vehicles. All other issues will be reserved for the trial court. The Forensic Evaluation As custody of the minor child is at issue, on January 13, 2021, this Court ordered a forensic evaluation to be conducted by Dr. Stephen Herman. The cost of the forensic evaluation was to be shared by the parties with 55 percent being paid by the Defendant and 45 percent being paid by the Plaintiff. The issue of the forensic evaluation was also the subject of Motion #003, in which the Defendant sought to reapportion the costs of the forensic evaluation. Motion #003 was denied on February 9, 2021, and the forensic evaluation and Attorney for the Child fees remain subject to reallocation after trial. Based upon the parties’ statements of net worth and the clear conflict regarding custody and parenting of the minor child, the request to vacate the forensic or reapportion the shares is hereby denied. Discovery and a Protective Order In this motion, the Plaintiff is further seeking a protective order to prevent the Defendant from engaging in “abusive” discovery practices. CPLR 3103 provides that “the court may at any time on its own initiative, or on motion of any party or of any person from whom or about whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.” See CPLR 3103. “When the disclosure process is used to harass or unduly burden a party, a protective order eliminating that abuse is necessary and proper.” Barouh Eaton Allen Corp. v. International Bus. Machs Corp.,76 AD2d 873 [2d Dept. 1980]. This Court does not find it necessary to rule on the Defendant’s discovery practices as he has withdrawn his subpoenas and requests for non-party depositions. The application for a protective order is denied, without prejudice. Disqualification of Defendant’s Counsel It is well settled that the disqualification of an attorney is a matter which rests within the sound discretion of the Court. A party’s entitlement to be represented in ongoing litigation by counsel of his own choosing is a valued right which should not be abridged, absent a clear showing that disqualification is warranted, and the movant bears the burden on the motion. See Campolongo v. Campolongo, 2 AD3d 476 [2d Dept. 2003]. Mr. J.J.N., Esq. is the brother of the Defendant and uncle of the children in this case. Though the Defendant has a right to be represented by counsel, there has been a clear showing in this matter that disqualification is warranted. Mr. J.J.N., Esq. has intimate knowledge about the parties, their marriage, their household and their children as he lived with the family during the parties’ marriage from January 2017 until May 2017. Based upon their close relationship, there is a possibility of Mr. J.J.N., Esq. being a witness in this case and a collateral in the forensic evaluation. Though he last had contact with the minor child A.N. at Thanksgiving 2020, he has had recent contact with the 18-year-old child of the marriage, J.N. The affidavit procured by counsel of his nephew J.N. is very concerning to this Court, first, as the parties should not be involving their son in the litigation, and second, as it references and advocates for the minor child A.N., who is represented by counsel. See RM v. EM, 64 Misc. 3d 304 [Sup.Ct. Nassau County 2019]. The Court has considered the impact in this case on the minor child A.N. having a family member, whom she presumably trusts, advocate for one parent over the other. Though Mr. J.J.N., Esq. presented in his papers that he would retain a colleague to handle a hearing, deposition or trial involving the child, his relationship with the family and continued representation of the defendant is not appropriate. Mr. J.J.N., Esq. may not always be his brother’s attorney, but he will always be J.N. and A.N.’s uncle. In light of this close relationship, the Court finds disqualification of Mr. J.J.N., Esq. and his firm necessary. Counsel Fees An award of counsel fee’s pursuant to Domestic Relations Law §237(a) “is a matter within the sound discretion of the trial court” and is “controlled by the equities and circumstances of each particular case.” See Quinn v. Quinn, 73 A.D.3d 887 (2d Dept 2010). Due to the contentious nature of this case, there have been five motions filed to date. In this action, the Court finds Plaintiff’s counsel, Karen Soren, Esq., to have a reasonable rate of $450 per hour. The Court further finds that it is reasonable to award four hours for representation in the course of these proceedings on this motion. As such, counsel fees are awarded in the total sum of $1,800 which shall be paid in three (3) $600 installments, effective April 1, May 1, and June 1, 2021, directly to Ms. Soren by the Defendant. CONCLUSION Upon the papers filed in support of the application and the papers filed in opposition thereto, and after hearing oral arguments, for the reasons detailed above and set forth on the record, it is hereby ORDERED that the Plaintiffs request for exclusive use and occupancy of the marital home is granted, pursuant to the order dated January 5, 2021. ORDERED that the Defendant must pay pendente lite child support in the sum of $766.53, payable every other week, pursuant to the order dated March 3, 2021. The issue of child support above the Child Support Standards Act cap is reserved for the trial court. ORDERED that the Plaintiffs request for Defendant to contribute his pro rata share to the cost of the children’s education and extracurriculars is decided as follows: As previously ordered, the parties must continue the status quo payments of the tuition for Moore Catholic High School for minor child A.N. ORDERED that the parties shall pay their pro rata shares for the children’s medical insurance premiums. ORDERED that the parties shall each be responsible for the costs associated with their respective vehicles. ORDERED that the request to vacate the order for a forensic is hereby denied. ORDERED that the protective order directing Defendant to refrain from engaging in abusive discovery practices is denied, without prejudice. ORDERED that J.J.N., Esq. is disqualified as attorney for the Defendant. ORDERED that counsel fees are awarded to Plaintiff’s counsel, Karen Soren, Esq, in the sum of $1,800, for the filing of this motion, payable on April 1, 2021, May 1, 2021, and June 1, 2021, in the sum of $600 per month. Date: April 2, 2021
