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J.S. v. P.S.

Supreme Court, Richmond County

February 16, 2018

J.S., Plaintiff
v.
P.S., Defendant.

          Present: Hon. Catherine DiDomenico

          DECISION AND ORDER

          CATHERINE M. DIDOMENICO, J.

         Recitation as required by CPLR 2219(a) of the papers considered in the review of Motion Sequence Numbers 001 & 002 Numbered

         Order to Show Cause by Defendant (001), 1

         Notice of Cross Motion by Plaintiff (002) 2

         Opposition and Reply by Defendant 3

         Affidavit in Reply by Plaintiff 4

         Defendant's Updated Financial Documentation Provided at Court's Request 5

         Index No.51008/2015

         Motion Sequence Nos.: 001; 002

         Upon the foregoing cited papers, the Decision and Order is as follows:

         Defendant Wife moves by Order to Show Cause (Seq. No. 001) for various aspects of pendente lite relief, however, the parties were able to resolve many of these applications during the pendency of this case. Moreover, many other aspects of the motion were necessarily mooted by the parties' post-nuptial agreement or by the interim orders of this Court. To date, neither party has filed an application to set the post-nuptial agreement aside, accordingly, for purposes of this Decision, that agreement is valid and binding on the parties. See Lobatto v. Lobatto, 186 A.D.2d 39 (1st Dept. 1992).

         On or about July 15, 2016, Plaintiff Husband has filed a cross motion wherein he seeks the denial of Wife's motion in its entirety, together with an Order granting him affirmative relief. However, Husband withdrew his claims for affirmative relief on the record of December 14, 2017. Instead, Husband requests that his cross motion be deemed his opposition to Wife's application. In sum and substance, Husband argues that Wife's application is precluded by the parties' post-nuptial agreement, which he claims that his Wife simply "ignores" in her moving papers.

         In regard to the post-nuptial agreement, Wife's reply papers make reference to what would, or would not, be permissible if the Court were to "set the agreement aside." However, as indicated above, Wife has not made an application for this Court to set the agreement aside. Moreover, to the extent that Wife's Reply could be construed to be an application to set the agreement aside, that application can certainly not be raised for the first time in reply papers. See Northern Blvd. Corona, LLC. v. Northern Blvd. Prop. LLC. 2018 NY Slip Op 00428 (2d Dept. 2018); See also, Wells Fargo Bank, N.A. v. Osias, 2017 NY Slip Op 09195 (2d Dept. 2017).

         The present motion appeared on this Court's calendar for oral argument on December 14, 2017. The issues remaining in Wife's motion that require a ruling from this Court are her request for: (a) pendente lite child support; (b) an allocation of unreimbursed medical expenses; (c) an award of temporary maintenance; and (d) an award of interim counsel fees. [1]

         Factual Background

         The parties were married in June of 2005 in the State of New Jersey. The present action for divorce was commenced with the filing of a Summons and Complaint in or around November of 2015.Accordingly, this is a marriage of moderate duration. There is one child of this union, J. S. Jr. who is currently nine years old.

         Defendant Wife is 40 years old and currently employed as a teacher on a part time basis for an entity known as "Behavior Experts." Wife's pay stubs indicate that she is a "private contractor" for that entity. Wife also admits that she is a private tutor without indicating the amount of income she derives from that employment. Husband alleges in his opposition that Wife earns at least $2, 000 a month from tutoring. At the time the present motion was filed, Wife failed to provide tax documentation as an attachment to her Statement of Net Worth. However, Wife has provided her 2016 tax documentation in response to this Court's request for the same during oral argument of the motion. According to her 2016 tax return, Wife earned the gross sum of $14, 468. Wife has also provided a letter from her employer indicating that as of December 15, 2017 she had ...


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