38 Misc. 3d 389
N.Y. Sup. Ct.2012Background
- Wife seeks temporary maintenance under DRL § 236 (B) (5-a) and counsel fees; parties live apart with two children per February 2011 custody/support agreement.
- In 2010, husband earned $83,564 and wife $23,442; child support under the agreement is $11,700 annually from husband.
- Assets are encumbered; the marital home has no equity; debts exceed fair market value; wife to obtain a Majauskas-type distribution upon final settlement.
- Court uses the new presumptive temporary maintenance calculation (approx. $19,360) but may deviate under § 236 (B) (5-a) (e) (1) after considering factors.
- Court finds that the presumptive amount would shift resources between spouses (monied vs. non-monied) and may be unjust or inappropriate in this case.
- Court ultimately reduces the presumptive maintenance to $10,000 for wife and $10,000 for husband, and orders $3,000 in counsel fees (plus $2,500 retainer previously paid).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether presumptive maintenance can be deviated | Wife argues statutory guidance should guide maintenance, deviations allowed only for unjust outcomes. | Husband contends deviation is warranted by financial needs and resource shifts. | Presumptive amount can be deviated where unjust or inappropriate due to resource shift. |
| Whether the 'resource shift' alone justifies deviation | Wife asserts maintaining the standard of living justifies maintenance; resource shift supports deviation. | Husband argues the shift would impoverish him; deviation would defeat the statute's purpose. | Resource shift may justify adjusting the presumptive award; not dispositive but a valid factor. |
| Whether the court may consider the CSSA deviation in child support as a factor in temporary maintenance | Wife notes substantial CSSA deviation; argues presumptive maintenance should reflect that. | Husband asserts child support deviation is independent of temporary maintenance calculation. | CSSA deviations are not an equitable factor to alter the temporary maintenance amount. |
| Appropriate level of temporary maintenance given finances | Wife seeks amounts near the presumptive guideline to preserve standard of living. | Husband argues for lower maintenance or none to avoid windfall; insists on maintaining mortgage/debts. | Court reduces presumptive amount to balance equities, awarding $10,000 to wife and $10,000 to husband, with rationale tied to net resources. |
| Counsel fees under DRL § 237 | Wife entitled to fees as less monied spouse; seeks broad attorney’s fees support. | Husband objects to amount; disputes extent of wife’s legal costs and ability to pay. | Court awards $3,000 in counsel fees to wife, plus $2,500 retainer previously paid, to be paid in six installments. |
Key Cases Cited
- Khaira v Khaira, 93 A.D.3d 194 (1st Dept 2012) (presumptive maintenance can be adjusted as unjust or inappropriate)
- Scott M. v Ilona M., 31 Misc.3d 353 (Sup Ct, Kings County 2011) (downward deviation permissible; resource shift not alone)
- Dornbusch v Dornbusch, 110 A.D.2d 808 (2d Dept 1985) (pendente lite maintenance considerations; reluctance to force moving)
- Yecies v Yecies, 108 A.D.2d 813 (2d Dept 1985) (purpose of pendente lite maintenance to tide over, not finalize distribution)
- Wexler v Wexler, 162 A.D.2d 326 (1st Dept 1990) (counsel fees and financial considerations for less monied spouse)