Recitation as required by CPLR 2219(a) of the papers considered in the review of Motion Sequence Number 004 Numbered Order to Show Cause by Defendant (002) 1 Affidavit in Opposition by Plaintiff 2 Affidavit in Reply by Defendant 3 Statement of Net Worth by Plaintiff 4 Supplemental Affirmation in Support by Plaintiff 5 Transcript of Proceedings 10/9/2020 6 Upon the foregoing cited papers, the Decision and Order is as follows: Defendant, Putative Wife, moves by Notice of Cross Motion (Seq. No. 004) for various aspects of pendente lite relief, requesting an Order: (A) granting her temporary maintenance; (B) appointing an expert to value the Plaintiff’s business interests; (C) appointing an expert to value the Plaintiff’s real estate holdings, vehicles and jewelry; and (D) granting an award of counsel fees in the amount of $25,000. Plaintiff, Putative Husband, opposes Defendant’s motion in all respects. As will be discussed in more detail below, this case has had a short but tumultuous procedural history. The present motion is one of five motions that have been filed in this matter, the rest having been resolved by order of this Court, or stipulation between the parties. Notably, the parties are identified as Putative Husband and Putative Wife herein as a result of a So Ordered Stipulation which resolved motion sequence number 002. Therein, the parties agreed that their marriage is void as a matter of law, as the Plaintiff was already married when the present parties solemnized their marriage at the Wyoming Correctional Facility in Attica New York. While initially a point of contention, the parties have agreed that even though their marriage is void, this Court is still required to consider the issues raised in the proceeding, including applications for maintenance, equitable distribution, and counsel fees. See Valente v. Cabral, 177 AD3d 810 (2d Dept. 2019). Factual Background At the onset, it is notable that the parties cannot agree to a single material fact regarding their putative marriage. Accordingly, the facts set forth herein are this Court’s best attempt at summarizing the drastically different versions of the parties’ union, or lack thereof. It appears that the parties were “married” on October 7, 2011 in Wyoming County, New York. At the time of “marriage” Plaintiff was incarcerated in the Wyoming Correctional Facility. However, at the time when this civil ceremony was conducted, the Plaintiff was already married to a person by the name of Erin B. Defendant takes the position that she had no reason to believe that Plaintiff was already married. However, Plaintiff claims that Defendant was aware of his prior marriage and that she actively deceived him into thinking that Ms. B. was deceased in order to get married. Plaintiff alleges that he had previously tried to divorce Ms. B., but that his uncontested filing was dismissed on procedural grounds. Plaintiff further alleges that in the summer of 2010 he intended on re-filing for divorce, so that he could legally marry the Defendant, but that Defendant informed him that re-filing would be unnecessary because Ms. B. was deceased. Plaintiff alleges that as an inmate he had no means to independently verify his prior Wife’s status, so he relied upon the Defendant’s statement. Moreover, when the parties’ marriage application was finally approved by the Department of Corrections, he concluded that Defendant must have told him the truth. According to Plaintiff, he only learned that Ms. B. was alive at the time of marriage when he was released on parole in 2018. The evidence submitted by the parties reveals that Ms. B. actually died in 2012, a year after the parties were married. Thus, as Plaintiff was legally married at the time when the parties were married, the present marriage is void as a matter of law. See Zeitlan v. Zeitlan, 31 AD2d 955 (2d Dept. 1969). The parties have agreed to this finding by Stipulation dated October 2, 2020. As indicated above, this Court is still required to adjudicate the financial issues raised in the present motion as the domestic relations law includes “actions to declare a marriage void.” See Amsellem v. Amsellem, 189 Misc 2d 27 (Sup. Ct. Nass. Cty. 2001). However, Plaintiff argues that no financial awards should be granted to Defendant as the parties never formed an economic partnership. See e.g. Francis v. Francis, 236 AD2d 749 (2d Dept. 2001); see also C.U. v. E.U., 26 Misc 3d 1235(A) (Kings Cty. 2010). Plaintiff argues that while Defendant did visit him in prison, those visits were infrequent and not of a romantic nature. Rather, Plaintiff claims that the Defendant used those visits to divulge a long history of fraudulent activity to him, including allegations of insurance fraud, and financial assistance fraud, some of which allegedly involved the use of his name. Plaintiff states that he became very concerned about the Defendant’s actions, but that he remained “married” to her because he was lonely in prison. Defendant counters that while Plaintiff was incarcerated, she stayed with him on the phone “as long as humanly possible” and that she visited him frequently. Defendant claims that the parties were best friends, that they formed a strong social and economic union, and that they frequently discussed future business plans that would take place after the Plaintiff was released. One such business venture, “C*****’s Transportation Service LLC,” was registered by Defendant in 2016 shortly before Plaintiff was released from prison. It is unclear what, if anything, came from that alleged joint business venture. It is undisputed that Plaintiff was released from prison on parol in November of 2016. However, the parties cannot agree on what happened after his release. Plaintiff claims that he stayed in Upstate New York for a period of two months before he moved to Staten Island because he found employment with a construction company. Plaintiff argues that the parties never cohabitated or formed a typical marriage partnership during those two months, or at any other time. Plaintiff admits that Defendant came to visit him in Staten Island from time to time but alleges that it was never for longer than a weekend. In contrast, Defendant alleges that the parties consistently cohabited after the Plaintiff’s release, first in Niskayuna New York, and then in Staten Island. According to Defendant, their cohabitation ended in March of 2018 when she decided to “take a break” and move to Atlanta Georgia to undergo training as a bus driver. When Defendant returned to the Plaintiff’s apartment in June of 2018, she found the locks had been changed. Absent from Defendant’s recitation of facts is that the present action is not the parties first matrimonial filing. The parties had previously filed for an uncontested divorce in 2017. According to the pleadings in that action, which were signed by both parties and notarized, both parties waived the right to seek equitable distribution from one another. However, the applicability of this agreement to the present divorce proceeding is questionable, as the divorce was withdrawn, and the document, while sworn, is not sufficiently notarized to serve as a nuptial agreement. See Galetta v. Galetta, 21 NY3d 186 (2013). The present action for divorce, or to declare the marriage a nullity, was commenced with the filing of a Summons and Complaint on or about July 22, 2019. Accordingly, this a putative marriage of approximately eight years duration. There are no children of this union, although both parties have children from other relationships. Plaintiff is 46 years old and has become a very successful businessman and entrepreneur after his release from prison. Plaintiff has started at least five companies including a record label, a clothing company, and a construction company. Plaintiff also has various real estate holdings and he, or his companies, own several luxury vehicles. According to his 2019 tax return, which has been annexed to his sworn statement of net worth, Plaintiff earned “total income” of $208,018 from his various business ventures. Defendant claims that this sum is woefully inaccurate and argues that a more accurate approximation of Plaintiff’s annual income would be in the $600,000 range. However, in a supplemental affirmation, Defendant’s counsel argues that Plaintiff’s “minimum gross income” is more likely in the range of $3,713,115 a year, a figure that Plaintiff contests. Defendant is 47 years old and is employed as a “parking assistant” with an entity known as “Entertainment Partners Enterprises LLC.” According to a pair of 2019 W2s issued by her employer, it appears that Defendant earned a gross sum of $18,808 from her employment. Plaintiff has not provided a 2019 tax return; however, her 2018 tax return indicates total income of $14,763. Plaintiff, in opposition, argues that Defendant has held various jobs throughout her life including an Amazon fulfillment worker, a crossing guard, a Greyhound bus driver, and a corrections officer. Defendant argues that her current employment is well below her established earning capacity, and thus he argues that the sum of $45,930 should be imputed to her for any support calculations. In their respective papers, both parties argue that the other is not credible, while in fact, both parties present with considerable credibility issues. In this regard the Court notes that Plaintiff was arrested and convicted of serious crimes which included an allegation that he “forged search warrants to gain access to private premises.” See People v. C., (Cite Redacted) (Sup. Ct. NY Cty. 2008). The forgery aspect of his crimes impact directly upon Plaintiff’s credibility. See People v. Young, 178 AD2d 571 (2d Dept. 1991). However, the same is true for Defendant. Defendant admits in her moving papers, and during oral argument, that she has previously filed falsely sworn petitions in the Family Court to seek child support from the Plaintiff while knowing that the child at issue was born before the parties met. (Tr. 10/9/20; Pg.20). Accordingly, the claims and assertions made by both parties in their papers are subject to scrutiny. See Washingon Mut. Bank v. Holt, 113 AD3d 755 (2d Dept. 2014). Decision Temporary Maintenance Plaintiff seeks an award of pendente lite maintenance. In her initial moving papers, she argues that the sum of $600,000 should be imputed to Defendant from which she concludes that she would be entitled to a monthly sum of $4,355 in support. However, in her attorney’s supplemental affirmation it is argued that that Defendant’s income is more likely $3,713,115 a year and that he should be required to pay a monthly sum of $13,500. Defendant, in opposition, argues that the presumptive amount of support is actually $2,363 a month, not $4,355, but that no support should be payable, as the Plaintiff failed to establish that the parties ever formed an economic union throughout their atypical relationship. Defendant further claimed, during oral argument of the motion, that his income has been reduced (though not by a stated amount) because of the current COVID-19 Pandemic’s effect on his businesses. Under what is now well settled law, this Court is required to apply a statutory mathematical formula in determining temporary maintenance awards. See DRL §236(B) [5a]. Pursuant to DRL §236(B)(5-a)(c) after the statutory formula is applied to the parties’ income, the calculated amount is considered the presumptive award of temporary maintenance, which shall be ordered, unless the Court finds that the presumptive award would be unjust or inappropriate based upon the factors prescribed in DRL §236(B)(5-a) (e)(1). If the Court determines that the presumptive temporary maintenance award is unjust or inappropriate, thereby warranting a deviation, the statute requires that the order adjusting the presumptive award must include the amount of the unadjusted presumptive award of temporary maintenance, the factors the Court considered, and the reasons the Court adjusted the presumptive award. See DRL §236B [5-a][e][2]. In determining income for the purpose of calculating temporary maintenance, the statute uses the same definition of income as set forth in the Child Support Standards Act. See DRL §236B [5-a][b][4]. The Court is directed to utilize income figures as they were, or should have been, reported on the parties’ most recently filed tax return. See DRL §240(1-b)(b)(5) (i); See also Toscano v. Toscano, 153 AD3d 1140 (2d Dept. 2017). However, the Court is not bound by the parties’ representation of their finances and has the authority to impute income where such a finding is supported by the record. See Cazar v. Browder, 191 AD3d 837 (2d Dept. 2021). Here, both parties argue that income should be imputed to the other. However, as indicated above, considering the credibility issues facing both parties, and taking notice that the current COVID-19 pandemic has suppressed all sectors of the economy, this Court is reluctant to impute any income absent an evidentiary hearing. While some of the records uncovered by the Plaintiff bring the Defendant’s reported income into question, there is insufficient evidence in this motion record to conclude that the Plaintiff is currently earning, or is capable of earning, in excess of three million dollars a year. Moreover, any income over the statutory cap of $192,000 is arguably irrelevant absent a showing by Plaintiff that income above the cap should be considered. See Benedict v. Benedict, 169 AD3d 1522 (4th Dept. 2019); see also Matter of Good v. Ricardo, 189 AD3d 830 (2nd Dept. 2020). No such showing has been made here. The most recent tax documentation provided to the Court by both parties is from 2019. According to these documents, Plaintiff earned the sum of $18,808 and Defendant earned the sum of $208,018. From these gross amounts the Court is required to subtract statutory tax deductions that were “actually paid”. See Kaufman v. Kaufman, 102 AD3d 925 (2d Dept. 2013). Plaintiff’s gross income in 2019 was $18,808. According to Plaintiff’s W2s she paid the sum of $1,166 in Social Security tax, $273 in Medicare tax, and $328 in local (NYC) tax. Accordingly, after deducting the applicable taxes, Plaintiff’s adjusted income for support purposes is $17,041. According to Defendant’s 2019 tax return he paid the sum of $5,996 in Social Security tax, $1,402 in Medicare tax, and $4,716 in local (NYC) tax. See Frie v. Pearson, 244 AD2d 454 (2d Dept. 1997). Accordingly, after deducting allowable taxes Plaintiff’s adjusted income for the purpose of calculating pendente lite maintenance shall be $195,904. However, as indicated above the maintenance guidelines statute includes a statutory cap on the payor’s income, which is currently $192,000. Where, as here, the payor earns in excess of the statutory cap, the Court must apply a series of factors set forth in DRL 236(B)(5-a)(d) (h)(1) to determine if income above that amount should be utilized. These factors include, but are not limited to: the age and health of the parties; the present or future earning capacity of the parties; the existence or duration of a pre-divorce separate household; the need of one party to incur education and training expenses, the reduced or lost earning capacity of the payee as a result of having forgone or delayed education during the marriage, and perhaps most importantly, the established standard of living the parties established during the marriage. See Goncalves v. Goncalves, 105 AD3d 901 (2d Dept. 2013). The Court is further guided by the principle that the overarching purpose of a temporary maintenance award is to “provide for the reasonable needs of the less monied spouse during the pendency of the action, allowing him or her to adequately litigate the matter without being forced to capitulate to the demands of the other spouse because of financial pressures.” Anonymous v. Anonymous, 137 AD3d 538 (1st Dept. 2016); see also Brenner v. Brenner, 52 AD3d 322 (1st Dept. 2008). Here, a review of the Plaintiff’s statement of net worth reveals that she claims reasonable monthly expenses of $2,045, an amount far below the presumptive award if the statutory cap were utilized. It is undisputed that the Defendant is the more monied party and has an earning capacity higher than the Plaintiff. However, as indicated above, there are material questions of fact regarding all of the other DRL §236 factors that will necessitate an evidentiary hearing to resolve. No facts in this matter are undisputed. The parties cannot agree to how long they lived together, if ever, and Defendant takes the position that they never formed an economic union. The only fact that the parties have agreed upon is that their marriage is void as a matter of law. More importantly, Plaintiff has failed to address any of the statutory factors above in a meaningful way. Plaintiff has offered no evidence of an established marital standard of living, nor has she established a need for additional employment or training. In fact, Plaintiff’s only stated reason for seeking temporary maintenance is that since the Defendant can pay it, he should. Accordingly, the Court finds that Plaintiff failed to establish why this Court should consider using any amount of income above the statutory cap of $192,000. Calculations Under the temporary maintenance guidelines statute the Court is required to make three calculations using the parties’ annual incomes. The direction to utilize either the first or second calculation is dependent upon whether the party paying maintenance (the “payor”) is also the party required to pay child support. The presumptive award of temporary maintenance shall be the lower of either the first or second calculation (whichever applies), as compared to the third calculation. In the present case, Defendant is the party obligated to pay maintenance and the issue of child support is not applicable, thus, the second statutory calculation applies. For this calculation, the Court is required to subtract 20 percent of the payee’s income from 30 percent of the payor’s income. Here, Plaintiff’s adjusted income is $17,041 and Defendant’s adjusted income is $195,904. However, as indicated above, this Court has concluded that it will not consider income above the statutory cap of $192,000, accordingly that figure applies. After applying the parties’ respective incomes with the above arithmetic, the Court finds that the calculation results in an award of $54,192 a year. For the third statutory calculation, the Court is required to add the payor’s income and the payee’s income and multiply the combined sum by 40 percent. The payee’s income is then subtracted from this figure. Here, the parties’ combined income is $209,041. Multiplying this figure by 40 percent, the calculated figure is $83,616. When Plaintiff’s income of $17,041 is subtracted from the combined amount the Court finds that the second calculation results in the sum of $66,575 a year. As the Court is directed to utilize the lower of the two calculations, the presumptive amount of guidelines maintenance is $54,192 a year or $4,516 a month or $2,084 bi-weekly. Deviation While the statutory calculations provide a presumptive amount of maintenance to be awarded by the non-monied spouse, the application of those calculations cannot become a simple mathematical exercise. It is well established that the purpose of a temporary maintenance award is to assure that the reasonable needs of a dependent spouse are met during the pendency of the proceeding. See Ritter v. Ritter, 135 AD2d 421 (1st Dept. 1987). It is the moving party’s burden to demonstrate the need for the award sought. See Brenner v. Brenner, 52 AD3d 322 (1st Dept. 2008). The new approach of calculating spousal support payments to the nonmonied spouse is intended to arrive at an amount that will cover all the payee’s presumptive reasonable expenses pendente lite. See Khaira v. Khaira, 93 AD3d 194 (1st Dept. 2012). The court can modify the presumptive amount of support in the event that it finds that it is “unjust or inappropriate.” See DRL §236(b)(5-a)(e)(2). When determining whether to deviate, the court must consider similar factors to those that it did when it determined whether to utilize income above the statutory cap. See Goncalves v. Goncalves, 105 AD3d 901 (2d Dept. 2013). Here, after reviewing Defendant’s application, and her sworn statement of net worth, this Court finds that an award of $1,600 a month in pendente lite support is more than sufficient to meet her reasonable needs during the pendency of this matter. See Abramson v. Gavares, 109 AD3d 849 (2d Dept. 2013). As indicated above, Defendant’s statement of net worth indicates that she spends approximately $2,045 a month in expenses including expenses incurred for the benefit of children who are not of this union. Accordingly, the figure granted herein accounts for approximately 78 percent of Defendants’ stated needs per month without her having to utilize her own income. While Defendant seeks far more than this amount, she has woefully failed to establish why she would need an award in excess of her monthly expenses. See Renga v. Renga, 86 AD3d 634 (2d Dept. 2011). Moreover, she has failed to address any of the statutory factors applicable to pendente lite maintenance. However, as this Court must consider the factors, it finds that this was a putative marriage of short duration, that both parties are capable of gainful employment sufficient to support themselves, and that Defendant failed to establish an enhanced standard of living that should be continued through a support award. Accordingly, and without prejudice to Defendant establishing these (or other) factors at trial, the presumptive monthly award of $4,516 a month is hereby reduced to $1,600 a month. See Chusid v. Silvera, 110 AD3d 660 (2d Dept. 2013); see also S.A. v. L.A. 42 Misc 3d 744 (Sup. Ct. West. Cty. 2013). Any perceived inequity in this award may be addressed by a speedy trial, at which the parties’ financial circumstances can be fully explored, and Defendant can address the factors necessary to support a larger award. See Stock v. Stock, 108 AD3d 663 (2d Dept. 2013); see also Shane v. Shane, 104 AD3d 837 (2d Dept. 2013). This monthly amount of support shall be paid in one payment due before the last day of each month, commencing with a first payment due on or before June 30, 2021. Retroactivity As Defendant is seeking pendente lite relief, the award of maintenance herein shall be retroactive to the service of the present motion, wherein she seeks that relief. See Signorelli v. Signorelli, 50 AD3d 772 (2d Dept. 2008). Defendant’s motion was served on or around January 27, 2020. As such the retroactivity period is sixteen (16) months before the first support payment mandated herein is due (on or before June 30, 2021). Accordingly, Plaintiff owes the sum of $25,600 in temporary maintenance arrears ($1,600 x 16 months). While Plaintiff is entitled to a credit for any payments made on Defendants behalf, there is no evidence in the motion record that he has made any voluntary payments, and the Court has not ordered any. Plaintiff is hereby directed to pay the sum $25,600 directly to Defendant within 120 days of this Order. Counsel Fees Defendant seeks an award of pendente lite counsel fees in the amount of $25,000 to fund her ongoing representation in this matter. Defendant seeks the award based upon a retainer and limited billing documentation provided by her attorney, David A. Zeitlin Esq. According to the billing documentation provided, Defendant owed her attorney the sum of $7,357.50 as of January 27, 2020. Plaintiff opposes any award of counsel fees to Defendant arguing that he should not be compelled to “fund a litigation that is clearly purposeless and wasteful.” Pursuant to DRL §237(a), a lawyer who represents a non-monied party may seek attorney’s fees from the monied party in a matrimonial action. See O’Connor v. O’Connor, 89 AD3d 703, 704 (2d Dept. 2011). DRL §237(a)(5) creates a rebuttable presumption that counsel fees shall be awarded to the less monied party. See Tomassetti v. Tomassetti, 2021 NY Slip Op 03075 (2d Dept. 2021). Like the other requests for relief addressed herein, the issue of interim counsel fees remains viable in an action to declare a marriage null or void. See Ranieri v. Ranieri, 146 AD2d 34 (2d Dept. 1989). An award of attorney’s fees will generally be warranted where there is a significant disparity in the financial circumstances of the parties. See Chesner v. Chesner, 95 AD3d 1252, 1253 (2nd Dept. 2012). The purpose of DRL §237(a) is to redress the economic disparity between the monied party and the non-monied party in a matrimonial proceeding. See Pezzollo v. Pezzollo, 173 AD3d 918 (2d Dept. 2019). An award of interim counsel fees under DRL §237 is intended to allow the non-monied party to litigate the action on an equal footing. See Prichep v. Prichep, 52 AD3d 61 (2d Dept. 2008). In support of her application, Defendant annexes a copy of her attorney’s retainer agreement, together with billing documentation regarding counsel fees incurred up and until January of 2020. Defendant paid her attorney an initial retainer of $3,000 in relation to this proceeding. Defendant’s attorney charges an hourly rate of $375. Defense counsel does not propose an approximate number of hours that will be needed to bring the case to a resolution, but does indicate that he believes a significant amount of additional work will be required due to the “unique and novel” issues raised in this proceeding. Defense counsel further argues that he has had to resort to the use of subpoena’s to obtain what he should have received during discovery. Plaintiff does not challenge the sufficiency or accuracy of the documentation provided by Defendant’s counsel, but raises a general argument that he should not be compelled to fund an action that he sees as meritless. Based upon the financial information provided, it is clear that Plaintiff is the monied party in this action and is therefore subject to the presumption of counsel fees. See Khaira v. Khaira, 93 AD3d 194 (1st Dept. 2012). The arguments raised by Plaintiff fail to rebut this presumption. See Potvin v. Potvin, 2021 NY Slip Op 02429 (2d Dept. 2021). Accordingly, under the totality of the circumstances presented, and after considering the parties’ respective incomes, financial obligations, the amount of work already concluded, and the complicated issues anticipated in the future, Defendant is hereby awarded counsel fees in the amount of $18,750 representing a 75 percent contribution to the amount sought by Defendant. See DRL §237(a); see also, Chaudry v. Chaudry, 95 AD3d 1058 (2d Dept. 2012); Marchese v. Marchese, 185 AD3d 571 (2d Dept. 2020). Plaintiff is hereby Ordered to pay the combined sum awarded herein ($18,750) directly to Defendant’s attorney in two payments of $9,375. The first payment shall be made within 30 days of service of this Order with notice of entry. The second payment shall be made within 60 days of service. If Plaintiff so chooses, he may pay the entire amount awarded in one lump sum payment. This award does not preclude future applications for counsel fees, if appropriate, at or before the time of trial. This constitutes the Decision and Order of the Court on all issues raised in relation to motion sequence numbers 004. Defendant’s application for the appointment of various neutral experts will be addressed at the next compliance conference which shall be held on August 4, 2021 at 3PM. In anticipation of that conference Defendant’s counsel is directed to confer with Plaintiff’s counsel to determine exactly which presumptively marital assets are at issue so that the issue of appraisals and an allocation of the cost thereof may be discussed in a thoughtful manner. Any issues raised in the present motion that were not specifically addressed herein, or resolved by prior Orders of the Court, are hereby referred to the Trial Court. Dated: June 3, 2021
