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Rouis v. Rouis

Supreme Court of New York, Third Department

December 21, 2017

NATASHA ROUIS, Respondent,
v.
JONATHAN ROUIS, Appellant.

          Calendar Date: November 15, 2017

          Stenger, Roberts, Davis & Diamond, LLP, Wappingers Falls (Thomas R. Davis of counsel), for appellant.

          Law Office of Patricia T. Bisesto, Esq., White Plains (Patricia T. Bisesto of counsel), for respondent.

          Before: Egan Jr., J.P., Rose, Devine, Mulvey and Rumsey, JJ.

          MEMORANDUM AND ORDER

          Mulvey, J.

         Appeal from an order of the Supreme Court (Work, J.), entered April 8, 2016 in Sullivan County, which, among other things, granted plaintiff's motion for pendente lite relief.

         Plaintiff (hereinafter the wife) and defendant (hereinafter the husband) were married in 1993 and have two children (born in 1997 and 1999). After the husband departed the marital residence, the wife commenced this action for divorce in August 2014 and the husband counterclaimed for divorce. In September 2015, the wife moved by order to show cause seeking, among other things, temporary maintenance, temporary child support and counsel fees. Supreme Court granted the wife, among other things, temporary maintenance ($1, 958 per month) and child support ($2, 720 per month) and required the husband to pay for the carrying costs and upkeep of the marital home ($4, 859 per month), private school for the youngest child ($848 per month), health insurance for the family ($1, 921 per month), interim counsel fees ($10, 000) and the wife's vehicle and fuel costs ($644 per month). The husband now appeals.

         Initially, the husband contends that the temporary maintenance and child support awards, in combination with the requirement that he pay the carrying costs for the marital home and the expenses related to the wife's vehicle, are excessive and should be reduced. "Generally, the appropriate remedy for any claimed inequity in a temporary award is a speedy trial, and we will only modify such an award where it results in a party's inability to meet reasonable expenses during the pendency of the matrimonial action" (Jordan v Jordan, 114 A.D.3d 1129, 1130 [2014] [citations omitted]; see Galvin v Galvin, 154 A.D.3d 1141, 1142 [2017]). The parties have advised this Court that the trial in this matter commenced in October 2017, but that a final decision is not expected for several months. We would ordinarily defer ruling on pendente lite relief under these circumstances, permitting the husband to raise these claims at trial (see Giannuzzi v Kearney, 127 A.D.3d 1350, 1351 [2015]). However, given that Supreme Court's combined monthly awards amount to an annual award of $155, 400 plus $10, 000 in interim counsel fees, to be paid from the husband's annual gross income of $183, 300.50 (for purposes of maintenance) as calculated by the court based upon his 2013 tax return, we agree that the temporary awards are excessive and should be modified.

         In calculating the temporary maintenance award, Supreme Court applied the statutory formula (see Domestic Relations Law § 236 [B] [5-a] [c] [1]), which "created a substantial presumptive entitlement intended to provide consistency and predictability in calculating temporary spousal maintenance awards" (Galvin v Galvin, 154 A.D.3d at 1142 [internal quotation marks, brackets and citations omitted]). Using the husband's 2013 gross income of $183, 300.50 [1] and the wife's income of $11, 700, the court arrived at a presumptive monthly temporary maintenance amount of $4, 387.50. However, with regard to the marital home, the wife was awarded exclusive use and possession and resides there with the younger child; the older child also resides there when home from college. The wife also requested, on top of the presumptive maintenance award, that the husband pay $4, 859 per month for the home's carrying costs, including the mortgage, taxes, utilities, insurance and upkeep. The court recognized that it would not be equitable to require the husband to pay full maintenance, child support and all carrying costs on the marital home, so it essentially credited the husband for one half of the carrying costs on the home ($2, 429.50 per month) by reducing the presumptive maintenance award by that amount, resulting in a temporary maintenance award of $1, 958 per month. Supreme Court then also ordered the husband to pay the full monthly carrying costs on the home ($4, 859) in which he does not reside (compare Galvin v Galvin, 154 A.D.3d at 1143 ["Where, as here, the parties continue to reside together in the marital residence during the pendency of a divorce, we find that it is appropriate to credit the payor spouse with one half of the court-ordered carrying charges."]; Francis v Francis, 111 A.D.3d 454, 455 [2013]). When the wife's vehicle expenses are added ($644 per month), this results in a total combined monthly award of $7, 461, plus tuition ($848 per month) and child support, discussed below.

         The net effect of Supreme Court's order is that the husband is paying the full presumptive maintenance award plus one half of the carrying costs on the home and the wife's vehicle expenses. He objects, correctly arguing that the statutory formula used to calculate the presumptive temporary maintenance award was intended to cover all of the nonmonied spouse's needs and basic living expenses, including the carrying charges on the home and her vehicle expenses (see Su v Su, 128 A.D.3d 949, 950 [2015]; Woodford v Woodford, 100 A.D.3d 875, 877 [2012]; Khaira v Khaira, 93 A.D.3d 194, 200 [2012]). To that end, it has been recognized that "[t]he formula to determine temporary spousal maintenance that is outlined in Domestic Relations Law § 236 (B) (5-a) (c) is intended to cover all of the payee spouse's basic living expenses, including housing costs, the costs of food and clothing, and other usual expenses " (Su v Su, 128 A.D.3d at 950 [internal quotation marks and citations omitted; emphases added]). The court recognized this, noting that "[t]he cost of maintaining a home for the wife and children is factored into the maintenance and child support guidelines " (emphasis added), but then declined, without adequate explanation, to require the wife to pay any of those household expenses from the maintenance award. In addition, the court ordered the husband, who no longer had family health coverage from his prior elective office, to obtain and pay the full amount of "equivalent coverage, " which was estimated to cost $23, 052 per year, or $1, 921 monthly, and apportioned an incorrect pro rata share of unreimbursed medical expenses [2]. The husband was also ordered to pay the entire cost of the younger child's private school tuition. [3]

         Under these circumstances, while requiring the husband to pay a portion of the housing costs may have been appropriate, Supreme Court should have discussed why the presumptive award of temporary maintenance was "unjust or inappropriate" and the factors it considered. To that end, the court did not explain its reasons for substantially upwardly deviating from the presumptive maintenance award or the basis for requiring the husband to pay the add-on living expenses and half of the housing expenses on top of the guideline amount (see Domestic Relations Law § 236 [B] [5-a] [e] [2]; Su v Su, 128 A.D.3d at 949-950; Khaira v Khaira, 93 A.D.3d at 197-200). [4]

         In the exercise of our discretion, which "'is as broad as that of Supreme Court'" (Cummins v Lune, 151 A.D.3d 1258, 1260 [2017], quoting Cheney v Cheney, 86 A.D.3d 833, 835-836 [2011]), we find that the combined award for maintenance, carrying costs and the expenses of the wife's vehicle ($7, 461 per month) - which is $3, 073.50 per month in excess of the presumptive maintenance award ($4, 387.50 per month) (without considering health insurance costs, child support or tuition) - is excessive [5]. Accordingly, we deem it appropriate to reduce the husband's obligation to pay the carrying costs on the marital home by approximately one half of that excess amount, or $1, 540 per month, to $3, 319 per month [6]. The temporary maintenance award of $1, 958 is not changed.

         With regard to the temporary child support award, Supreme Court miscalculated the parties' pro rata shares of child support. The court calculated a combined parental income of $195, 000, based upon the husband's annual income of $130, 650 (after maintenance is deducted) and computed the wife's annual income at $64, 350 (with maintenance included). The husband's correct pro rata share is 67% and the wife's share is 33%. Further, the court incorrectly calculated the child support obligations by (1) failing to deduct FICA taxes from the parties' combined income as required (see Domestic Relations Law § 240 [1-b] [b] [5] [vii] [H]; Shamp v Shamp, 133 A.D.3d 1213, 1216 [2015]), (2) erroneously calculating the basic child support obligation by applying the parties' (incorrect) pro rata shares to the entire combined parental income, without first multiplying it by the statutory percentage (25% for two children) (see Domestic Relations Law § 240 [1-b] [b] [3] [ii]; [c] [2]), and (3) failing to indicate, with regard to the amount of combined parental income in excess of the statutory cap ($141, 000) (see Social Services Law § 111-i [2] [b]), if it would apply the statutory factors or the child support percentage (see Domestic Relations Law ยง 240 [1-b] [c] [3]; [f]). Accordingly, the matter must be remitted for immediate recalculation of the husband's temporary child support obligation. Given that the matter has proceeded to trial ...


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