TERMINATION OF TEMPORARY MAINTENANCE IN SHORT TERM MARRIAGE?

FA v. SA, 2023 NY Slip Op 50059 - NY: Supreme Court 2023:

"The Court is called upon to determine whether or not, during the pendency of a matrimonial action, to terminate an award of temporary maintenance. Notwithstanding the parties' thirty-nine (39) month marriage, and notwithstanding that the order of temporary maintenance was issued in February, 2022, the Court concludes, based upon the specific facts of this case, that a termination of temporary maintenance during the pendency of this action would be improper at this time.

The relevant provisions regarding temporary maintenance are contained within the ambit of DRL § 236(B)(5-a), which reads, in relevant part:

5-a. Temporary maintenance awards.

a. Except where the parties have entered into an agreement providing for maintenance pursuant to subdivision three of this part, in any matrimonial action the court, upon application by a party, shall make its award for temporary maintenance pursuant to the provisions of this subdivision.

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e. Notwithstanding the provisions of this subdivision, where the guideline amount of temporary maintenance would reduce the payor's income below the self-support reserve for a single person, the guideline amount of temporary maintenance shall be the difference between the payor's income and the self-support reserve. If the payor's income is below the self-support reserve, there shall be a rebuttable presumption that no temporary maintenance is awarded.

f. The court shall determine the duration of temporary maintenance by considering the length of the marriage.

g. Temporary maintenance shall terminate no later than the issuance of the judgment of divorce or the death of either party, whichever occurs first.

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n. The temporary maintenance order shall not prejudice the rights of either party regarding apost-divorce maintenance award.

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(emphasis added).

The Court notes that the parties were married on XXX XX, 2018, and that this action for divorce and ancillary relief was commenced on August 13, 2021, by the filing of a Summons with Notice with the Nassau County Clerk's Office (see NYSCEF Document No.: 01). To this end, the Court notes that the length of this marriage is approximately three (3) years, three (3) months, and seventeen (17) days, or approximately thirty-nine (39) months. The gravamen of the Defendant's argument is, in effect, that since he paid nine months of temporary maintenance, this is the "mid way" between the statutory duration for post-divorce maintenance (see S. Ahmed Affidavit Paragraph "4"). The Defendant therefore argues, in effect, that since he has reached the "midpoint" of the statutory advisory guidelines, the Court should adopt them for purposes of this application, and terminate his temporary maintenance obligation. His counsel posits that given the length of this marriage, the duration for maintenance ". . . would be 6 months to 1 year . . ." (see J. Goody Affirmation Paragraph "10"). The Court declines to adopt the arguments proffered for the reasons set forth hereinafter.

The Court notes that pursuant to DRL § 236(B)(5-a)(f):

f. The duration of post-divorce maintenance may be determined as follows:

(1) The court may determine the duration of post-divorce maintenance in accordance with the following advisory schedule:

Length of the marriagePercent of the length of the

marriage for which

maintenance will be payable

0 up to and including 15 years 15%-30%

More than 15 up to and including 20 years 30%-40%

More than 20 years 35%-50%

It is initially undisputed that this matter has not concluded. The Court initially rejects, as unavailing, the Defendant's contention that his maintenance should be terminated because the length of his payments have equated to the "midpoint" of the statutory provisions regarding post-divorce maintenance. The plain language of DRL § 236(B)(5-a)(f) clearly provides that the "durational" advisory schedule is not only advisory pursuant to DRL § 236(B)(5-a)(f)(1), but that such advisory schedule applies to post-divorce maintenance (emphasis added). Additionally, DRL § 236(B)(5-a)(n) provides that ". . . [t]he temporary maintenance order shall not prejudice the rights of either party regarding a post-divorce maintenance award . . ." (emphasis added). The Court therefore finds that the legislature clearly intended a differentiation between awards of temporary maintenance and post-divorce maintenance, and the Court does not find that the "advisory schedule" applies to awards of temporary maintenance. As the February Order directed the Defendant to pay temporary maintenance, the Court does not find that it is bound by the "advisory schedule" when determining an application for, or termination of, an award of temporary maintenance.^[1] As for the Defendant's argument in footnote "1" of his counsel's Affirmation that ". . . there are some judges who will put in duration of temporary maintenance in the Order . . ." (see J. Goody Affirmation Paragraph "10", footnote "1"), the Court rejects this argument inasmuch as no such duration for the temporary maintenance award was fixed within the February Order.

In the Court's analysis of the plain language of the statute, the Court notes that DRL § 236(B)(5-a)(g) provides that temporary maintenance shall terminate no later than the issuance of the judgment of divorce or the death of either party, whichever occurs first. The Court interprets this provision to mean that the only time that an award of temporary maintenance must terminate is either upon issuance of a judgment or divorce or death. This leads the Court to the inescapable conclusion that it has discretion as to whether or not to terminate an award of temporary maintenance during the pendency of an action prior to the issuance of a judgment or the death of a party. In furtherance of the aforesaid, DRL § 236(B)(5-a)(f) provides that ". . . [t]he court shall determine the duration of temporary maintenance by considering the length of the marriage . . ." Merriam-Webster's Dictionary defines "considering" as ". . .: in view of: taking into account . . ."^[2] Therefore, a fair reading of DRL § 236(B)(5-a)(f) leads this Court to the conclusion that while the Court shall consider (and take into account) the length of the marriage, it need not consider the length of the marriage as the dispositive or controlling factor in the duration of temporary maintenance. Put differently, this Court is not mandated to terminate an award of temporary maintenance based upon the length of a marriage, notwithstanding and irrespective of how short (or long) that marriage may be.

The Court has additionally analyzed pertinent case-law. The Second Department has held that the amount and duration of maintenance is a matter committed to the sound discretion of the trial court, and every case must be determined on its unique facts. D'Alauro v. D'Alauro, 150 AD3d 675 (2d Dept. 2017) (emphasis added); see also Gafycz v. Gafycz, 148 AD3d 679 (2d Dept. 2017); see also Carr-Harris v. Carr-Harris, 98 AD3d 548 (2d Dept. 2012); see also Wortman v. Wortman, 11 AD3d 604 (2d Dept. 2004); see also DiBlasi v. DiBlasi, 48 AD3d 403 (2d Dept. 2008); see also Kaprov v. Stalinsky, 145 AD3d 869 (2d Dept. 2016). Additionally, the Court notes that the purpose of pendente lite maintenance is to ensure that a needy spouse is provided with funds for his or her support and reasonable needs pending trial. Jin c. v. Juliana L., 137 AD3d 1063 (2d Dept. 2016); see Coven v. Coven, 82 AD3d 1144 (2d Dept. 2011); see Fales v. Fales, 102 AD3d 734 (2d Dept. 2013); see Cooper v. Cooper, 7 AD3d 746 (2d Dept. 2004).

The Court has given consideration to the parties' approximate thirty-nine (39) month marriage, and the Court recognizes that while short in duration, the Court determines that termination is improper. In arriving at this conclusion, the Court exercises its discretionary authority and considers the unique facts (see supra and see infra) of this case (see D'Alauro v. D'Alauro, supra; see Gafycz v. Gafycz, supra). Indeed, the Court has given substantial weight to the specific unique facts and circumstances of this case, which is that the Defendant — indisputably — previously failed (and is currently failing) to comply with so much of this Court's February Order directing the payment of temporary maintenance. The Court notes that the Plaintiff was previously compelled to file an application seeking to adjudicate the Defendant to be in contempt of Court. Indeed, when the Court issued the October Order, it found:

ORDERED, that so much of Branch (a) of the Plaintiff's Order to Show Cause dated September 8, 2022 with respect to maintenance arrears and Branch (d) of the Plaintiff's Order to Show Cause dated September 8, 2022 be and are hereby GRANTED TO THE EXTENT that Defendant, S.A., is hereby adjudicated and deemed to be in contempt of court of this Court's Decision and Order dated February 17, 2022; and it is further

ORDERED, that Defendant is directed to appear before this Court in person for sentencing on December 7, 2022 at 11:00 a.m., however, the contemnor may purge his contempt if he pays the sum of $5,372.22 directly to the Plaintiff and provides proof of payment to this Court by the filing of same on NYSCEF on or before December 6, 2022 at 9:30 a.m.; and it is further

ORDERED, that the Defendant is on notice that in the event he fails to purge himself of contempt as provided, he is subject to additional penalties, including a period of incarceration . . .

The Defendant's argument: which is, in effect, that since he paid the temporary maintenance lump-sum, it equates to nine (9) months of payments and therefore should be terminated, is as troubling as it is flawed. While the Defendant may have purged his contemptuous conduct by his lump sum payment, he only did so only after such time as he was adjudicated to be in contempt of the February Order (see supra), and did so only after he was faced with the prospect of incarceration for civil contempt (see supra). The Defendant's past historical and continued noncompliance with the February Order — which provides clear and unequivocal directives for the support of his spouse — begs the question: if the purpose of pendente lite maintenance is to ensure that a needy spouse is provided with funds for his or her support and reasonable needs pending trial, what purpose does a temporary support order of maintenance serve if the temporary support is not timely paid? The answer is quite simple: it does not serve or further that purpose. A needy spouse should not be required to "chase" the payor spouse for timely payments. Inherent in a temporary order of support is that support should be received on a timely basis so as to enable the needy spouse to support himself or herself. If such support is not timely paid, the noncompliance fails to serve or further the purpose of the support order. The Defendant's logic and conduct, taken together, ostensibly countermands the intent of the February Order. His conduct, therefore, militates against termination of his temporary maintenance obligation.

Dovetailed with the aforesaid, the Court notes that a married person is chargeable with the support of his or her spouse. See Family Court Act § 412(1). Not only that, but a party is not free to disregard a court order and decide for himself the manner in which to proceed (see generally Skripek v. Skripek, 239 AD2d 488 (2d Dept. 1997)), and the importance of obedience to orders of a trial court cannot be overstated. Balter v. Regan, 63 NY2d 630 (1984) (Kaye, J., dissenting) (emphasis added). The Court additionally notes that any perceived inequities in the pendente lite award can be best remedied by a speedy trial, at which the parties' financial circumstances can be fully explored (see Sinanis v. Sinanis, 67 AD3d 773 (2d Dept. 2009); see also Swickle v. Swickle, 47 AD3d 704 (2d Dept. 2008)), and the Court at the time of trial has the discretion to retroactively modify pendente lite maintenance, after hearing the facts and circumstances established at trial. See Emmanuel D. v. Ximena D., 2021 NY Misc. LEXIS 5161 (Supreme Court Kings County 2021). The Court cannot overstate the inexorable conclusion: the Defendant's historical and continued noncompliance with so much of the February Order with respect to his temporary maintenance has thwarted the Plaintiff's right to timely receive the temporary maintenance as ordered, thereby prejudicing her rights to ensure that her needs are timely met; the Defendant's conduct has undermined the intent and purpose of so much of the February Order which provided for the support of the Defendant's spouse."