The following e-filed documents listed on NYSCEF (Motion #001) numbered 2-13, 16-20 were read on this motion. Upon the foregoing documents, and on consideration of oral argument conducted on August 4, 2022, Motion Sequence #001 is resolved and therefore, it is hereby, ORDERED, that the Plaintiff is DENIED interim legal and physical custody of the unemancipated child, Ar.A., born on XXXX, 2005, pendente lite, and the Defendant is GRANTED interim legal and physical custody of the unemancipated child, Ar.A., born on XXXX, 2005, pendente lite. ORDERED, that the Plaintiff is DENIED a determination as the residential custodial parent for the child, Ay.A., born XXXX, 2003, pendente lite, and the Defendant is GRANTED a determination as the residential custodial parent for the child, Ay.A., born XXXX, 2003, pendente lite. ORDERED, that the Plaintiff’s request is GRANTED that Defendant pay 100 percent of all educational, medical, and extracurricular activity expenses for the children of the marriage entitled to support, pendente lite, subject to reallocation at trial. ORDERED, that the Plaintiff is GRANTED monthly spousal maintenance in the amount of $1,025.72 [One Thousand Twenty-Five Dollars and Seventy-Two Cents], pendente lite, and without prejudice to renew as to either party upon completion of discovery, subject to reallocation at trial. ORDERED, that the Plaintiff is DENIED child support, pendente lite. ORDERED, that the Defendant is GRANTED child support and Plaintiff is Ordered to pay to Defendant the basic child support obligation of $50.00 [Fifty Dollars and No Cents] per month, pendente lite, subject to reallocation at trial. ORDERED, that the Clerk of the Court shall enter judgment accordingly. Memorandum Decision Statement of Facts Plaintiff Z.A. and Defendant A.A. were married on April 6, 1997. There are three children of the marriage, to wit: Al.A., born XXXX, 1998, Ay.A., born XXXX, 2003, and Ar.A., born on XXXX, 2005. The Plaintiff commenced this action for divorce on or about November 3, 2021. On March 30, 2022, Plaintiff filed Motion Sequence #001 by Order to Show Cause. The Plaintiff seeks (a) legal and physical custody of the unemancipated child, Ar.A., born on January 21, 2005; (b) a determination that the Plaintiff is the residential custodial parent for the child, Ay.A., born XXXX, 2003; (c) interim child support on behalf of the child, Ay.A., and the child, Ar.A., pursuant to statutory guidelines and based on the parties’ relative incomes; (d) Defendant to pay all educational, medical, and extracurricular activity expenses for the children of the marriage entitled to support, pendente lite; (e) interim spousal maintenance pursuant to Domestic Relations Law §236 [B] [5-a], based on the parties’ respective incomes; (f) alternatively, Defendant to pay unallocated child and spousal support at the rate of $4,770.00 per month based on the needs of the Plaintiff and children; (g) interim counsel fees in the amount of $7,500.00 pursuant to Domestic Relations Law §237 [d]; and (h) other further relief the Court find just and proper. On June 16, 2022, Defendant filed opposition. Reply was filed by Plaintiff on June 22, 2022. Oral argument was heard on Motion Sequence #001 on August 4, 2022. On August 8, 2022, a Decision and Order was rendered as to interim counsel fees. This is a Decision and Order on the remaining prongs of Motion Sequence #001. Discussion I. Legal and Physical Custody of the Unemancipated Child, Ar.A., and Residential Custody of the Child, Ay.A. The Plaintiff alleges a long history of domestic violence in their relationship, including physical and mental assault. (NY St Cts Filing [NYSCEF] Doc Nos. 3). Defendant responds to these allegations of violence in his Opposition, “Plaintiff makes numerous allegations of domestic violence between us [Plaintiff and Defendant] (which I do admit)[.]” (NY St Cts Filing [NYSCEF] Doc Nos. 19). On or about March 26, 2021, the Plaintiff filed a Family Offense petition in Richmond County Family Court. (NY St Cts Filing [NYSCEF] Doc Nos. 3). The Defendant was excluded from the marital residence by Temporary Orders of Protection and remained excluded in accord with the terms and conditions of a Final Order of Protection issued by the Richmond County Family Court, Order No. 2022-000846, expiration date 7/2/2022. (NY St Cts Filing [NYSCEF] Doc Nos. 6). Plaintiff states in her Affidavit that all three children reside with her in the marital home. She has been a stay-at-home mother to all three children since they were born and was responsible for taking care of their everyday needs. Plaintiff further asserts that she is the de facto legal and residential parent of the child, Ar.A.. (NY St Cts Filing [NYSCEF] Doc Nos. 3). Defendant alleges that the children, Ay.A., born XXXX, 2003, and Ar.A., born on XXXX, 2005, have freely chosen to reside with him. Defendant further purports an allegation that the Plaintiff is engaged in an intimate romantic relationship with their oldest son, Al.A. (NY St Cts Filing [NYSCEF] Doc Nos. 19). On August 5, 2022, a Court Ordered Investigation was issued. The Administration for Children’s Services (ACS) provided their report on August 16, 2022. On August 16, 2022, the Court requested further investigation and a follow-up report was provided on August 18, 2022. ACS reports Plaintiff-Mother’s home provides a bedroom for her eldest son, Al.A., that adjoins her own on the main level of the marital home. There is an attic room shared by her daughter, Ay.A., and youngest son, Ar.A.. The attic room contains sleeping accommodations in the form of one mattress for Ay.A. and comforters on the floor for Ar.A.. During the follow-up interview with Plaintiff on August 16, 2022, Plaintiff denied any intimate relationship with her son, Al.A., but refused to allow ACS to interview him alone and denied that he was available for interview. The interview with the child, Ar.A., indicates that he sleeps at Defendant-Father’s home and prefers to live with the Defendant-Father due to alleged conflict with his older brother, Al.A., who lives with Plaintiff-Mother. The child, Ar.A., also reported to ACS that he is aware of the alleged intimate relationship between the Plaintiff-Mother and his eldest brother, Al.A., but has no firsthand knowledge of it. The child, Ar.A., reports he was made aware of this relationship by the Defendant-Father and his older sister, Ay.A.. The child, Ay.A., expressed concerns for her mother’s mental health and had issues regarding missing items while living with Plaintiff-Mother. The child, Ay.A., stated that while the Plaintiff-Mother and the eldest son were very close, she did not observe any behavior that would indicate an inappropriate relationship. The child, Ay.A., was made aware of the allegations of an inappropriate relationship by the Defendant-Father. Defendant reiterated his allegations of a relationship between the Plaintiff and the eldest son to ACS. Defendant’s apartment contains one bedroom with one bed that the child, Ay.A., sleeps in and comforters on the floor that the child, Ar.A., sleeps on. Plaintiff indicated that he slept in the living room. ACS offered to provide both the Plaintiff and Defendant an additional bed for the child, Ar.A., and both parties declined. “In making a determination as to what custody arrangement is in the children’s best interests, the court should consider the quality of the home environment and the parental guidance the custodial parent provides for the children, the ability of each parent to provide for the children’s emotional and intellectual development, the financial status and ability of each parent to provide for the children, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the children’s relationship with the other parent[.]” (see Matter of Schultheis v. Schultheis, 141 AD3d 721 [2d Dept 2016], citing Matter of Hutchinson v. Johnson, 134 AD3d 1115 [2d Dept 2015]). In determining custody, the court should also consider the child’s wishes, weighed in light of their ages and maturity. (see id, 141 AD3d 721 [2d Dept 2016], citing Eschbach v. Eschbach, 56 NY2d 167 [1982]). “[W]hile not necessarily determinative, the child’s expressed preference is some indication of what is in his or her best interests and, in weighing that factor, a court must consider the age and maturity of the child as well as the potential for influence having been exerted on the child.” (see Matter of Newton v. McFarlane, 103 NYS3d 445 [2d Dept 2019], quoting Matter of Nevarez v. Pina, 154 AD3d 854 [2d Dept 2017]). “[A] 15-year-old child’s expressed preference is a relevant factor in determining the child’s best interests in connection with issues of custody and relocation[.]” (see id). Both parties provide almost identical living arrangements for the children, Ay.A. and Ar.A.. The children are ages 19 years-old and 17 years-old respectively. They have no impairments that would require assistance in taking care of or feeding themselves. These children appear to be living with the Defendant of their own free will and have expressed concerns in living with the Plaintiff. The child, Ar.A., has indicated that while he sleeps at the Defendant-Father’s home, he does visit with Plaintiff-Mother at the marital residence. There have been incidents of domestic violence between the Plaintiff and the Defendant in the past, which the Defendant does not deny, but there have been no allegations of domestic violence between the Defendant and the children. Accordingly, Plaintiff’s request for interim legal and physical custody of the unemancipated child, Ar.A., born on XXXX, 2005, is DENIED, pendente lite, and interim legal and physical custody of the unemancipated child, Ar.A., born on XXXX, 2005, is GRANTED, pendente lite, to the Defendant. Plaintiff’s request for a determination that the Plaintiff is the residential custodial parent for the child, Ay.A., born XXXX, 2003, is DENIED, pendente lite, and a determination of residential custodial parent for the child, Ay.A., born XXXX, 2003, is GRANTED, pendente lite, to the Defendant. II. Educational, Medical and Extracurricular Activity Expenses for the Children Plaintiff has no earned income and Defendant is the monied spouse. Accordingly, Plaintiff’s request that Defendant pay 100 percent of all educational, medical, and extracurricular activity expenses for the children of the marriage entitled to support is GRANTED, pendente lite, subject to reallocation at trial. III. Imputation of Income Plaintiff has not worked during the marriage but ACS reports that HHS provides the Plaintiff with $750.00 per month from the Supplemental Nutrition Assistance Program and $250.50 biweekly in cash. The Court is therefore imputing an annual income of $6,513.00 to the Plaintiff. Defendant is presently employed by a discount store, where he is a store manager and has held a fifteen percent (15 percent) ownership interest since about 2007. Plaintiff states his 2021 income was limited to salary in the amount of $28,560.00. Defendant also states he received $18,000.00 in rental income (NY St Cts Filing [NYSCEF] Doc Nos. 19). Plaintiff estimates that Defendant earns approximately $80,000.00 annually as he was always the sole support of the marital home. (NY St Cts Filing [NYSCEF] Doc Nos. 3). Plaintiff states in her reply that she believes the Defendant is earning more than $28,000 per year based on the lifestyle that the parties lived and the routine expenses that it took to run the household. Plaintiff also alleges that the Defendant is earning additional rental income from a basement apartment in the marital home. (NY St Cts Filing [NYSCEF] Doc Nos. 20). On August 3, 2022, during oral argument, the Defendant revised his prior statements and admitted that he receives two rental incomes from the marital residence, the two-family home in which the Plaintiff resides in one of the two apartments. Defendant further revised the amount of rental income to $20,400.00 annually. “Trial courts possess considerable discretion to impute income in fashioning a child support award[.]” (see Nosratabdi v. Aroni, 198 AD3d 976 [2d Dept 2021] quoting Moffre v. Moffre, 29 AD3d 1149 [3d Dept 2006]). “The court has considerable discretion in determining whether income should be imputed to a party[.]” (see Tuchman v. Tuchman, 201 AD3d 986 [2d Dept 2022] quoting Matter of Monti v. DiBedendetto, 151 AD3d 864 [2d Dept 2017]). There is evidence at this juncture that supports the Plaintiff’s allegation that the Defendant’s income is higher than reflected in his reported income. Defendant’s reported income omits the rental income he is collecting from the two apartments in the marital residence. The Court is therefore imputing an annual income of $48,960.00 to the Defendant for the purpose of calculations made herein, pendente lite, subject to reallocation at trial. IV. Spousal Maintenance, Pendente Lite In Motion Sequence #001, Plaintiff seeks an Order directing the Defendant to pay monthly Maintenance to Plaintiff pursuant to Domestic Relations Law §236 [B] [5-a] based on the parties’ respective incomes. Pendente lite maintenance is awarded to ensure that a needy spouse is provided with funds for their support and reasonable needs pending trial. It should be an accommodation between the reasonable needs of the moving spouse and the financial ability of the other spouse, determined with due regard for the pre-separation standard of living. (see Salmon v. de Salmon, 173 AD3d 793 [2d Dept 2019]). In this matter, the length of the marriage and the disparity in income make pendente lite maintenance appropriate. A. Guideline Amount Calculation Spousal Maintenance Plaintiff Defendant Total Income $6,513.00 $48,960.00 FICA: Social Security tax paid ($0.00) ($1,770.72) Medicare tax paid ($0.00) ($414.12) New York City income tax paid ($0.00) ($1,404.51) Adjusted CSSA Income $6,513.00 $45,370.65 First Calculation 30 percent of payor’s income up to and including the cap $13,611.20 Minus 20 percent of payee’s income ($1,302.60) Result 1 $12,308.60 Second Calculation Payor’s income up to and including the cap $45,370.65 Plus payee’s income $6,513.00 Combined income $51,883.65 40 percent of combined income $20,753.46 Minus payee’s income ($6,513.00) Result 2 $14,240.46 Lower of the two results $12,308.60 Accordingly, monthly spousal maintenance is GRANTED to Plaintiff in the amount of $1,025.72 [One Thousand Twenty-Five Dollars and Seventy-Two Cents], pendente lite, subject to reallocation at trial. V. Child Support As a consequence of this Decision, granting legal and physical custody of the unemancipated Child, Ar.A. to the Defendant and determining that the Defendant is the residential custodial parent for the Child, Ay.A., the Plaintiff’s request for child support is DENIED, pendente lite. “A parent has an obligation to provide support for his or her child’s basic needs, an obligation which is addressed in Domestic Relations Law §240 (1-b) (c) (1) (2).” (see Cimons v. Cimons, 53 AD3d 125 [2d Dept 2008]. The Child Support Standards Act “provides a precisely articulated, three-step method for determining child support.” (see Boltz v. Boltz, 178 AD3d 656 [2d Dept 2019]. This three-step process includes (1) computing a combined parental income, (2) multiplying that income, up to a certain income cap, by a specific percentage, and (3) determining the amount of income that should be considered for child support purposes if the combined parental income exceeds the income cap. (see Cassano v. Cassano, 85 NY2d at 649 [1995]). Plaintiff Defendant Adjusted CSSA Income $6,513.00 $45,370.65 Maintenance Adjustment $12,308.60 ($12,308.60) Income Adjusted for Maintenance $18,821.60 $33,062.05 Combined Parental Income $51,883.65 Applicable Child Support Percentage 25 percent Annual Parental Support Obligation $12,970.91 Share of Combined Parental Income 36.28 percent 63.72 percent Annual Pro Rata Shares $4,705.40 $8,265.51 The pro rata share reduces the Plaintiff’s income below the self-support reserve of $18,346.50 as determined by the HHS Poverty Level Figure for Single Person Family. Accordingly, Child Support is GRANTED to the Defendant and Plaintiff is Ordered to pay to Defendant the basic child support obligation of $50.00 [Fifty Dollars and No Cents] per month, pendente lite, subject to reallocation at trial. VI. Interim Counsel Fees The issue of interim counsel fees has been decided by an Order of this Court, dated August 8, 2022. Decretal Paragraphs It is hereby ORDERED, that the Plaintiff’s request for interim legal and physical custody of the unemancipated child, Ar.A., born on XXXX, 2005, is DENIED, pendente lite, and interim legal and physical custody of the unemancipated child, Ar.A., born on XXXX, 2005, is GRANTED, pendente lite, to the Defendant, and it is further; ORDERED, that the Plaintiff’s request for a determination that the Plaintiff is the residential custodial parent for the child, Ay.A., born XXXX, 2003, is DENIED, pendente lite, and residential custodial parent for the child, Ay.A., born XXXX, 2003, is GRANTED, pendente lite, to the Defendant, and it is further; ORDERED, that the Plaintiff’s request that Defendant pay 100 percent of all educational, medical, and extracurricular activity expenses for the children of the marriage entitled to support is GRANTED, pendente lite, subject to reallocation at trial. ORDERED, that the Plaintiff’s request for monthly spousal maintenance is GRANTED to Plaintiff in the amount of $1,025.72 [One Thousand Twenty-Five Dollars and Seventy-Two Cents], pendente lite, subject to reallocation at trial. ORDERED, that the Plaintiff’s request for child support is DENIED, pendente lite. ORDERED, that the Defendant is GRANTED child support and Plaintiff is Ordered to pay to Defendant the basic child support obligation of $50.00 [Fifty Dollars and No Cents] per month, pendente lite, subject to reallocation at trial. Any relief requested, and not specifically addressed in this Decision and Order is referred to the trial court. ORDERED, that the Clerk of the Court shall enter judgment accordingly. The foregoing shall constitute the Decision and Order of this Court. Dated: August 22, 2022
