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Ayoub v. Ayoub

June 11, 2009


Order, Supreme Court, New York County (Saralee Evans, J.), entered October 2, 2008, which, to the extent appealed from, granted plaintiff's motion for pendente lite relief in the form of monthly payments of $20,000 to maintain an apartment for plaintiff and the children, $7,000 in temporary child support, and $2,500 in temporary maintenance, as well as the cost of the children's private school tuition, child care and nursery school expenses, after-school and extracurricular activities, books, supplies, camp and travel expenses, the children's medical, therapy, dental and pharmacological costs, and the family medical insurance premiums, modified, on the facts, defendant ordered to pay the actual monthly cost of the apartment in which plaintiff and the children presently reside in lieu of $20,000 per month to maintain an apartment, and otherwise affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Gonzalez, P.J., Mazzarelli, Sweeny, McGuire, DeGrasse, JJ.


Plaintiff wife and defendant husband were married in 1997. Together they had three children, who are 10, 7 and 3. The husband is the sole owner of a commercial bakery that employs approximately 125 people and generates annual revenues in excess of $22 million. The wife has an undergraduate degree in architecture and owned a design business prior to the marriage. However, she did not work outside the home during the marriage and has no income of her own. She claims that the husband kept her in the dark about the parties' finances and that for spending money she relied on weekly cash allowances that he gave her.

During the marriage, the family enjoyed what can only be described as an extravagant lifestyle. They resided in a 6-story townhouse on East 70th Street in Manhattan, which they purchased for $6 million and then gut-renovated. They owned a vacation home in the Hamptons, situated on three acres of land, that was designed by a renowned architect. All of the furnishings and appliances in the homes were state of the art. For example, the mattress in the master bedroom in the townhouse cost approximately $50,000 and the speakers in the "audio/visual" room there cost approximately $150,000. Defendant's car collection is valued in excess of $1 million. The family's vacations were also extraordinary. They visited Paris each fall, and in the winter skied the slopes of Aspen, Vail, Beaver Creek and Bachelor Gulch. When they vacationed in Tuscany in the summer of 2005, they rented their own villa.

The parties also spared no expense when it came to their children. Each child's mattress cost approximately $6,500. When their oldest child wanted to learn how to play guitar, he received a $3,000 instrument. The children's annual birthday parties cost approximately $2,000 and their private school tuition is $30,000 per year each.

Shortly after she commenced this divorce action, the wife moved by order to show cause for pendente lite relief, including custody of the children, monthly maintenance, and monthly child support. The wife also sought to have defendant pay all carrying charges on the townhouse, medical insurance premiums for her and the children and private school tuition. In support of her motion the wife submitted her statement of net worth, in which she asserted that her monthly expenses were $52,658.80. These included, among other things, $7,166.66 for food, $4,583.33 for clothing, $3,000 for baby-sitting, $7,270.82 for education, $9,813.66 for recreation and $2,054.33 for miscellaneous items.

The wife also claimed in the statement of net worth that her monthly housing cost was $15,000. This was the amount she anticipated she would have to spend to rent an apartment in Manhattan. The need for her to rent was made necessary by the fact that, as of the time the wife made the motion, the husband had entered into a contract to sell the townhouse. He had also signed an agreement to purchase a mansion in Scarsdale, New York. The wife claims that she adamantly rejected the husband's proposal that they sell the townhouse and that she had no desire to move the children out of the City.

The husband cross-moved for temporary custody of the children and the appointment of a law guardian for the children. In opposing the wife's motion, the husband asserted that the expenses claimed by the wife in her statement of net worth were "grossly exaggerated." For example, he stated that the parties never spent the specific amounts claimed by the wife for food and clothing. According to his own statement of net worth, those items cost $1,720 and $2,416, respectively. The husband further maintained that the wife was entitled only to maintenance in the amount delineated in a pre-nuptial agreement between the parties.

The husband contended that the wife agreed to the concept of leaving the City. However, he conceded that he agreed to purchase the Scarsdale home unilaterally, after what he described as the wife changing her mind and refusing to cooperate in the search for a suitable home in Westchester County. The husband claimed that his desire to move to Scarsdale was motivated by the nearby presence of a particular private school well-suited to the special needs of one of the children, as well as the availability of good public schools for the other children. He also cited the declining real estate market in Manhattan and the rising cost of the children's private school tuition.

The husband claimed that the wife desires to remain in the City only to continue her own social life and that there is no reason for him to pay for an apartment when she and the children can live in the Scarsdale house. Further, he claimed that since two of his children could attend the Scarsdale public schools, it made no sense for him to also pay for private school tuition in the City. Indeed, he stated, he could not afford to carry the Scarsdale house and pay for private school. In support of the motion the husband submitted the parties' joint income tax returns for 2006, in which they stated adjusted gross income of $722,345.

After she replaced her original counsel, the wife's new attorneys brought an additional order to show cause that sought the same pendente lite relief as the first one. In her supporting affidavit, the wife asserted that the monthly rental cost of the apartments she had seen ranged from $15,000 to $22,000.

The court granted the wife's motion to the extent of directing the husband to pay her $20,000 per month to maintain an apartment in the City pending resolution of the action, as well as $40,000 for the initial rent payment and a security deposit. The husband was further ordered to pay up to $40,000 to furnish the apartment unless the parties agreed that the wife could furnish the apartment with items from the townhouse. In addition, the court directed the husband to pay the wife interim child support in the amount of $7,000 per month, maintenance in the amount of $2,500 per month, and an interim payment of attorneys' fees in the amount of $25,000. Finally, the court ordered the husband to pay the costs of the children's private school, child care, nursery school, after school and extracurricular activities, books, supplies, camps, travel and health care, and the family's health insurance premiums. In granting the award, the court stated that: "This temporary award is reasonable in light of the children's prior standard of living and the great discrepancy between the ...

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