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Camille Khaira, Plaintiff-Respondent v. Jasvinder Singh Khaira Defendant-Appellant.

February 7, 2012


The opinion of the court was delivered by: Saxe, J.

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.

Decided on February 7, 2012

David B. Saxe, J.P. John W. Sweeny, Jr., Leland G. DeGrasse Sallie Manzanet-Daniels Nelson S. Roman,JJ.

Defendant appeals from an order of the Supreme Court, New York County (Deborah A. Kaplan, J.), entered April 1, 2011, which, insofar as appealed from as limited by the briefs, awarded plaintiff interim counsel fees and unallocated maintenance and child support, and directed defendant to pay health care insurance and unreimbursed health care costs for his stepson.


This appeal gives us the opportunity to consider the new guidelines for awards of temporary spousal maintenance under Domestic Relations Law § 236(B)(5-a), particularly with regard to the circumstances in which the court may deviate from the guideline amount derived by formula (the presumptive award), and the procedures that must be undertaken to do so.

The parties married on July 8, 2006, having jointly purchased the marital residence the month before. They have two sons, born December 25, 2007 and December 1, 2009. The wife also has a son from a previous marriage, born February 1, 1992. In September of 2010, the husband voluntarily moved out of the marital residence, and in October 2010, the wife commenced this divorce proceeding. She moved for pendente lite support, asking for monthly maintenance of $11,500 and child support of $7,290, and a direction that the husband directly pay the carrying costs on the marital residence, child care expenses, and all health care expenses for the family.

To determine temporary maintenance, the motion court had to apply Domestic Relations Law § 236(B)(5-a), which had become effective on October 12, 2010, just days before the motion was made. The court determined the presumptive award to be $11,500 per month, awarded the wife $13,870 in unallocated spousal and child support, tax deductible to the husband, and required the husband to directly pay to the lender the monthly mortgage payments on the marital residence in which the wife and the children continue to reside, and the health care insurance premiums and unreimbursed health care expenses for the family, including his stepson. It also directed the husband to pay the wife interim counsel fees in the amount of $42,000.

On appeal, the husband contends that the motion court awarded the wife an excessive sum because it failed to consider his actual, documented net monthly income and cash flow, and incorrectly calculated his annual income by including non-recurring earnings such as a one-time bonus arising out of a Blackstone IPO, and illiquid, non-cash equity compensation arising out of the same IPO. He challenges the counsel fee award on the ground that the wife's mother guaranteed her counsel fee obligation, and counsel has been paid in full to date. He also challenges the directive that he pay the health care expenses of his stepson.

The new Domestic Relations Law § 236(B)(5-a) reflects a substantial change in the Legislature's approach to temporary maintenance. The previous spousal maintenance provision gave the court great leeway, directing only in general terms that it order maintenance "in such amount as justice requires," considering the parties' standard of living during the marriage, the reasonable needs of the non-monied spouse and the monied spouse's ability to pay, and with regard to a list of factors such as the parties' respective earning capacities (former Domestic Relations Law § 236[B][6]). Courts applying that provision observed that pendente lite maintenance was awarded to "tide over the more needy party, not to determine the correct ultimate distribution and to ensure that a needy spouse is provided with funds for his or her support and reasonable needs" (see e.g. Iannone v Iannone, 31 AD3d 713, 714 [2006] [internal quotation marks and citations omitted]).

The new provision, rather than aiming merely to "tide over" the non-monied spouse, creates a substantial presumptive entitlement. In an effort to provide "consistency and predictability in calculating temporary spousal maintenance awards" (Assembly Memorandum in Support, 2010 McKinney's Session Laws of NY, at 1943), the Legislature created formulas for the court to apply to the parties' reported income, as it did when it enacted the Child Support Standards Act (Domestic Relations Law § 240[1-b]; Family Court Act § 413). Further, the statute requires the court to explain any deviation from the result reached by the formula.

The new formula for temporary maintenance requires the court to begin with the parties' gross income as reflected in their most recent federal tax returns, less FICA and city taxes. The court must make two alternate initial calculations, based on the payee's income and the payor's income up to an initial cap of $500,000: first, the difference between 30% of the payor's income and 20% of the payee's income, and second, 40% of the parties' combined incomes, less the payee's income. The lesser of the results of these two calculations is the "guideline amount of temporary maintenance" (§ 236[B][5-a][c][1]). Where the payor's income exceeds $500,000, "the court shall determine any additional guideline amount of temporary maintenance through consideration of [19 enumerated] factors" (§ 236[B][5-a][c][2][a]), and "shall set forth the factors it considered and the reasons for its decision" (subd [c][2][b]). Next, the court must consider whether the guideline amount --- the presumptive award -- would be "unjust or inappropriate," on consideration of 17 enumerated factors (§ 236[B][5-a][e][1]).*fn1

The motion court properly followed the initial procedures. It applied the $500,000 cap to the husband's income, and using $60,000 as the wife's income, based on the monthly payments she acknowledged receiving from her parents, performed the two calculations: for the first, it subtracted 20% of $60,000 ($12,000) from 30% of $500,000 ($150,000), arriving at $138,000; for the second, it calculated 40% of $560,000 ($224,000), then deducted $60,000, ...

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