In this case, the husband, formerly making six figure incomes, becomes the stay at home parent while the wife advances in her career. And by this award, it appears that the court is preserving the marital home for equitable distribution and ensuring the husband does not become homeless. But the award gives him minimal cash and the shortfall means the court is expecting him to work and only allowing future modification if he proves he cannot work.
JS v PS, 2026 NY Slip Op 51612(U), Supreme Court, NY Co 2026:
Ronald Castorina, Jr., J.
This matrimonial action was recently assigned to the undersigned pursuant to the Administrative Order of the Chief Administrative Judge of the Courts, AO/150/2026, dated June 26, 2026, by which the undersigned was assigned from Supreme Court, Richmond County, to Supreme Court, New York County, Civil Term. Before the Court are two related applications: Defendant's Order to Show Cause seeking pendente lite maintenance and interim counsel fees [Motion Sequence No. 001], and Plaintiff's Cross-Motion seeking to fix her temporary support obligation, to obtain temporary child support and a pro rata contribution toward the statutory add-ons, and to obtain exclusive use of an automobile [Motion Sequence No. 002]. The applications are consolidated for disposition and are determined as set forth below.
I. Statement Pursuant to CPLR § 2219[a]
In accordance with CPLR § 2219 [a], the Court states that the following papers were read and considered upon the determination of these motions.
Upon Motion Sequence No. 001, the Court read and considered the Order to Show Cause signed February 11, 2026 (NY St Cts Filing [NYSCEF] Doc No. 22); the Affirmation of [Defendant] dated February 2, 2026, together with the exhibits annexed thereto designated "A" through "G" and the accompanying Certificate of Compliance (NY St Cts Filing [NYSCEF] Doc Nos. 12; 14-20); the Attorney Affirmation of [Defendant's counsel] dated February 3, 2026, together with the exhibits referenced therein and the accompanying Certificate of Compliance (NY St Cts Filing [NYSCEF] Doc No. 13); and the Affidavit of Service of [the process server] sworn to February 11, 2026 (NY St Cts Filing [NYSCEF] Doc No. 24).
Upon Cross-Motion Sequence Number 001, the Court read and considered the Notice of Cross-Motion dated March 10, 2026 (NY St Cts Filing [NYSCEF] Doc No. 25); the Affidavit of [Plaintiff] in Opposition to Motion and in Support of Cross-Motion sworn to March 10, 2026, together with the exhibits annexed thereto designated "1" through "21" and the accompanying Certification of Paper Length (NY St Cts Filing [NYSCEF] Doc Nos. 26; 28-48); and the Attorney Affirmation of [Plaintiff's counsel] dated March 10, 2026, together with the accompanying Certification of Paper Length (NY St Cts Filing [NYSCEF] Doc No. 27).
In further support of Motion Sequence Number 001 and in opposition to Cross-Motion Sequence Number 001, the Court read and considered the Client Affirmation of [Defendant] dated April 6, 2026, together with the exhibits annexed thereto designated "A" through "C" (NY St Cts Filing [NYSCEF] Doc Nos. 49; 51-53); and the Attorney Affirmation of [Defendant's counsel] dated April 4, 2026, together with the accompanying Certificate of Compliance (NY St Cts Filing [NYSCEF] Doc No. 50).
The Order to Show Cause, as signed by the Hon. Jeffrey H. Pearlman, J.S.C., struck the requested interim award of $8,750.00 per month in temporary maintenance pending the hearing and determination of the application, fixed a briefing schedule, set a return date of April 10, 2026, and bore the notation that oral argument was directed. Briefing was completed with the filing of Defendant's reply and opposition papers on April 6, 2026. The parties and counsel appeared in person before Justice Pearlman on the return date, April 10, 2026. A Preliminary Conference Stipulation and Order was executed and so-ordered on that date pursuant to 22 NYCRR 202.16 (NY St Cts Filing [NYSCEF] Doc No. 55), together with a further stipulation (NY St Cts Filing [NYSCEF] Doc No. 56), and a second stipulation was executed and so-ordered on June 8, 2026 (NY St Cts Filing [NYSCEF] Doc No. 59). Neither the Preliminary Conference Order nor either stipulation resolved these motions, which were left undetermined, and the Preliminary Conference Order records that maintenance, child support, equitable distribution, and counsel fees all remain unresolved. The action was thereafter reassigned to this Part. The applications being fully submitted and the parties having been heard, the Court determines them upon the papers, without prejudice to an application for a hearing upon any issue that cannot fairly be resolved upon a paper record.
II. Findings of Fact
A. The Parties, the Marriage, and the Division of Roles
Plaintiff [J.S.] is forty-nine years of age. She was raised in [redacted], attended [a private college], and is employed in marketing by a pharmaceutical company. Defendant [P.S.] is fifty-six years of age, was raised in Australia, and attended [a university] in Australia. Defendant states that from approximately 1996 through 2002 he built a substantial career in the London advertising industry, serving as a Board Director and senior executive at [four advertising agencies], and that in or about 2002 he became Managing Director and Proximity Divisional United States Chief Executive Officer of [an advertising agency] New York.
The parties met in 2003, when Defendant, then a Managing Director and Division Head at [that agency], hired Plaintiff, who had been recruited through a temporary employment agency. They married in January 2006. One child of the marriage, [R.S.], was born in May 2006. She was nineteen years of age when these applications were made and is now twenty. She attends [a university]. Defendant has an adult daughter from a prior relationship, [D.S.], who is twenty-two years of age and who graduated from college in May 2025.
From 2006 through approximately 2013, both parties advanced in the fields of marketing and advertising, with Defendant out-earning Plaintiff and earning between $200,000.00 and $300,000.00 per year. It is undisputed that Defendant earned $224,999.00 in 2010. Plaintiff states that he earned $172,000.00 in 2011; Defendant states the figure was $172,200.00. Following the death of Defendant's father in 2013, the parties' respective roles changed. Defendant states that the change was the product of a mutual and deliberate decision that Plaintiff would focus upon advancing her career at [her employer] while he assumed primary responsibility for the parties' daughter and the management of the household, including school-related responsibilities and the accompaniment of the child on multiple college tours. Plaintiff denies any such agreement, asserting that Defendant's withdrawal from the workforce was unilateral, that she repeatedly asked him to obtain employment, and that she bore the costs of the child's private school alone. The existence and terms of any such arrangement are sharply contested and cannot be resolved upon these papers.
In March 2016, Defendant left his position at [his last employer], where he had earned $51,923.00 for approximately three months of work. He has not been employed since. Plaintiff annexes email correspondence dated April 11, 2016, April 14, 2016, August 26, 2016, March 27, 2017, and June 13, 2017 [Exhibits 2 through 6] (NY St Cts Filing [NYSCEF] Doc Nos. 29-33), together with correspondence dated May 8, 2016 [Exhibit 7] (NY St Cts Filing [NYSCEF] Doc No. 34). Defendant characterizes his departure from [that employer] as part of broader personal, professional, and family circumstances, and explains that the "$4,000 bar tab" to which Plaintiff refers was a memorial gathering for a deceased friend, the costs of which were reimbursed by the attendees.
In or about 2020, the parties jointly purchased the property located at [address redacted], Bethlehem, Connecticut. Title is held in both names, and Plaintiff represents that she alone is obligated upon the mortgage note. Defendant states that he identified the property, executed the purchase agreement, oversaw extensive renovations, and managed contractors and the daily work on the home. In 2021, when the parties' daughter returned to in-person schooling, Plaintiff relocated with her to Brooklyn while Defendant remained primarily in Connecticut. By 2022 the parties were maintaining two separate households, an arrangement that continues. The child matriculated at [university] in the fall of 2024. Plaintiff commenced this action in or about January 2025.
B. Defendant's Medical Circumstances
Defendant states that on September 5, 2024 he suffered a severe corneal ulcer which caused a partial loss of vision and required intensive intervention, necessitating fifteen ophthalmology appointments in a single month, co-payments of $50.00 per visit totaling $750.00, $300.00 in travel and fuel costs, and $1,100.00 in compounded antibiotics and lab-fabricated medications. He further states that in January 2025 he sustained life-threatening injuries in a fall from the roof of the Connecticut residence while performing emergency repairs following a storm, that he underwent multiple surgeries in the ensuing months, and that he continues to require physical therapy, carried on his Statement of Net Worth as an unreimbursed expense of $50.00 per month.
Plaintiff acknowledges that Defendant had significant health issues and underwent several surgeries in early 2025. She contends that he has since improved, that his injuries were never the proximate cause of his unemployment, and that he has performed repair and renovation work on the Connecticut house, driven to New York City, and traveled to Turks and Caicos, as reflected in cellular roaming records [Exhibit 19] (NY St Cts Filing [NYSCEF] Doc No. 46). The Court finds, and Defendant does not dispute, that no medical record, treating physician's report, or certification of disability has been submitted. The Court finds that Defendant sustained the medical events described, a matter Plaintiff concedes, and finds that he has not established that those events presently preclude employment. The Court makes no finding that he is presently free of impairment; the absence of proof establishes only the absence of proof.
C. Defendant's Application [Motion Sequence No. 001]
Defendant seeks temporary maintenance of $8,750.00 per month, retroactive to the filing of the application with arrears paid in one lump sum, and $50,000.00 in interim counsel fees payable to [Defendant's counsel]. In his reply he agrees that any child support fixed against him be deducted from the maintenance awarded.
Defendant's Statement of Net Worth [Exhibit "A"] reflects total monthly expenses of $8,091.08 and virtually no income, with liquid assets of $13.00 in a Bank of America checking account. (NY St Cts Filing [NYSCEF] Doc No. 14). Within that total he identifies as essential a subset of $7,168.89, consisting, as itemized at NY St Cts Filing [NYSCEF] Doc No. 12 at ¶¶ 21-23, of housing expenses of $4,977.53 [mortgage of $2,350.00, homeowner's insurance of $775.00, household maintenance of $1,452.53, propane of $200.00, and electricity of $200.00] and non-housing expenses of $2,191.36 [food of $740.00, clothing of $150.00, insurance of $275.00, unreimbursed medical expenses of $326.36, automotive expenses of $350.00, and recreational expenses of $350.00]. The difference between the $8,091.08 total and the $7,168.89 essential subset reflects the exclusion of non-essential categories and is not, standing alone, an inconsistency.
Defendant further states that he has no access to credit; that his credit score has fallen from above 800 to the mid-500s; that his American Express account is in collections and his Apple Card delinquent, with a combined balance of approximately $12,000.00 [Exhibit "C"] (NY St Cts Filing [NYSCEF] Doc No. 16); that unpaid balances with Frontier of approximately $500.00 have produced internet outages impairing communication with recruiters; and that he cannot obtain propane absent prepayment of approximately $1,200.00. He annexes Plaintiff's 2024 federal income tax return reflecting adjusted gross income of $920,663.00 [Exhibit "B"] (NY St Cts Filing [NYSCEF] Doc No. 15) and a Temporary Maintenance Guidelines Calculator reflecting a presumptive award of $5,700.00 per month [Exhibit "D"] (NY St Cts Filing [NYSCEF] Doc No. 17).
Defendant's moving affirmation asks the Court to employ $350,000.00 as "the combined adjusted gross income" for purposes of the calculation, while his reply describes the same request as the application of "a $350,000 income cap." The arithmetic resolves the ambiguity: the $8,750.00 per month he seeks is thirty percent of $350,000.00 divided by twelve, with no income attributed to himself. His request is therefore properly understood as a request that the formula be applied to a payor income of $350,000.00 in place of the statutory cap.
As to fees, Defendant retained [Defendant's counsel] on September 3, 2025 and paid an initial retainer of $10,000.00 [Exhibit "E"]. (NY St Cts Filing [NYSCEF] Doc No. 18). Counsel's hourly rate is $625.00. Billing statements annexed as Exhibit "F" reflected $10,640.75 when the motion was made, and counsel affirmed that approximately ten hours had then been devoted to the matter. (NY St Cts Filing [NYSCEF] Doc No. 19). The invoice annexed to the reply reflects $19,040.44 [Exhibit "C"]. (NY St Cts Filing [NYSCEF] Doc No. 16). The papers do not make clear whether that figure represents total charges from inception or the balance remaining after application of the $10,000.00 retainer, and the Court addresses that ambiguity below.
D. Plaintiff's Opposition and Cross-Motion Sequence No. 001
Plaintiff opposes the motion and cross-moves for an order fixing her temporary maintenance obligation at $4,299.00 per month, representing the mortgage, real estate taxes, and homeowner's insurance for the Connecticut residence, payable by her directly to the mortgagee, the taxing authority, and the insurer; awarding her basic child support of $540.00 per month; directing Defendant to contribute his pro rata share of the child's add-on expenses, including medical insurance premiums, unreimbursed medical expenses, and college tuition, room, and board at [the child's university]; and granting her exclusive use of the automobile she maintains at her expense.
Plaintiff states (NY St Cts Filing [NYSCEF] Doc No. 26, ¶¶ 10-11) that she pays in excess of $5,000.00 per month in direct and indirect support, consisting of $4,299.00 in carrying costs, $265.00 for automobile insurance, and $500.00 in cash. Her Statement of Net Worth confirms the carrying costs at $4,299.00 per month for the Connecticut house and reports total monthly expenses of $31,564.00 for both households (NY St Cts Filing [NYSCEF] Doc No. 28, Exhibit 1, ¶ II). The mortgage upon the Connecticut house is held by Iron Bank, in her name alone as mortgagor, at $2,313.00 per month, with a balance of $457,242.00 maturing on August 14, 2050; the house was purchased on August 1, 2020 for $644,000.00 and is titled jointly. She adds that those sums exclude the utilities for the Connecticut residence, which exceeded $1,396.00 for January and February 2026 combined, health insurance premiums of $733.00 per month covering the entire family for medical, dental, and optical care, and a family cellular telephone bill of $360.00 per month. In 2025 she paid $52,196.00 in carrying costs, $11,133.00 in related costs for pest control, security, the pool, legal services concerning a pond, and hardware and supplies, and at least $2,424.00 in unreimbursed medical expenses on Defendant's behalf. She also paid rent of $1,200.00 per month on behalf of her stepdaughter from 2023 until that child's graduation in May 2025. Her monthly expenses, consisting principally of housing and utilities for both households of $12,349.00 and college expenses of $7,445.00, exceed her monthly take-home pay of $18,748.00 [Exhibits 1 and 8] (NY St Cts Filing [NYSCEF] Doc Nos. 28; 35), and her account balances are negative [Exhibit 9] (NY St Cts Filing [NYSCEF] Doc No. 36).
Plaintiff denies that she has "cut off" Defendant. She states that she ceased depositing earnings into the joint account in 2019 or earlier; that she ceased paying his credit cards in July 2025; that she substituted a monthly cash payment of $500.00 together with an open offer to pay any necessary expense directly upon presentation of an invoice [Exhibits 11 and 12] (NY St Cts Filing [NYSCEF] Doc Nos. 38; 39); and that she paid over $1,600.00 to Defendant's dentist on March 3, 2026 [Exhibit 13] (NY St Cts Filing [NYSCEF] Doc No. 40). She annexes text messages of March 7 through 9, 2026 [Exhibit 14] (NY St Cts Filing [NYSCEF] Doc No. 41), March 2, 2026 [Exhibit 15] (NY St Cts Filing [NYSCEF] Doc No. 42), February 5, 2025 [Exhibit 16] (NY St Cts Filing [NYSCEF] Doc No. 43), and April 7, 2025 [Exhibit 17] (NY St Cts Filing [NYSCEF] Doc No. 44).
Plaintiff asks the Court to impute income of at least $200,000.00 to Defendant, relying upon his historical earnings, his asserted refusal to seek reemployment, loans exceeding $20,000.00 disclosed on his own Statement of Net Worth, one attributed to an "anonymous" lender, and the presence at the Connecticut residence of a companion identified as [S.], the same person disclosed as having lent him $12,500.00. She annexes photographs of that person's belongings [Exhibit 18] (NY St Cts Filing [NYSCEF] Doc No. 45). Employing an income figure of $1,017,981.00 which she attributes to her 2025 W-2 [Exhibit 20] (NY St Cts Filing [NYSCEF] Doc No. 47) and imputed income of $200,000.00, her counsel computes presumptive temporary maintenance of $0.00 and basic child support payable by Defendant of $540.00 per month, with add-ons shared 80.25% by Plaintiff and 19.75% by Defendant [Exhibit 21] (NY St Cts Filing [NYSCEF] Doc No. 48).
Plaintiff also observes that the guidelines worksheet annexed as Defendant's Exhibit "D" answers "no" to the question whether there are children of the marriage under twenty-one years of age. (NY St Cts Filing [NYSCEF] Doc No. 17). She states that Defendant has contributed nothing toward the child's support since 2022, and that she alone bears college tuition, room, and board of $7,118.00 per month, medical insurance premiums, unreimbursed medical expenses and psychotherapy totaling $11,180.00 in 2025, and sorority dues and activities of $160.00 per month.
Finally, Plaintiff and her counsel represent that no settlement proposal, telephone call, correspondence, or request for the exchange of financial documents preceded Defendant's motion.
E. Defendant's Reply and Opposition to the Cross-Motion
Defendant denies that [S.] resides with him and annexes a copy of her lease, with her surname redacted (NY St Cts Filing [NYSCEF] Doc No. 51). That document is a residential lease from [a limited liability company] for a first-floor unit at [address redacted], Thomaston, Connecticut, at $400.00 per month, for a term running from June 15, 2025 to July 1, 2026. It establishes that the person in question held a lease elsewhere during part of the period in question. It does not establish where she in fact resided, and its term has now expired. The question is not resolved upon these papers. He asserts that Plaintiff's 2025 W-2 income was approximately $1,094,829.00, equating to gross monthly income of approximately $91,235.75 and net monthly income exceeding $50,000.00 even at an effective rate of forty to forty-five percent. He annexes a December and January 2021 Fidelity statement reflecting approximately $2.4 million in employer-related equity compensation and retirement assets, with total holdings exceeding $2.7 million [Exhibit "B"] (NY St Cts Filing [NYSCEF] Doc No. 15), and estimates that Plaintiff now holds in excess of $4 million in vested equity together with $1 million to $1.5 million in unvested or restricted stock. He notes that within approximately four months of commencing this action Plaintiff relocated to an apartment renting for approximately $6,500.00 per month.
As to the summer of 2025, Defendant states that Plaintiff made approximately four visits to the Connecticut residence, that on one occasion she removed a substantial portion of the financial records maintained there after representing that she was retrieving personal belongings, and that during the same visit she threw pieces of outdoor and garden furniture, prompting neighbors to summon law enforcement. Plaintiff states that she gave ample advance notice of each visit, that on one occasion she brought her mother to assist her, that Defendant threatened to record her and insisted upon the presence of third parties or the police, and that responding state troopers advised her that they were present for her protection. These accounts are irreconcilable and are not resolved here.
With respect to the automobile, Defendant states that the vehicle is a Chevrolet Tahoe registered to the Connecticut residence, that the property is in a rural area not served by public transportation, and that the vehicle is his only means of attending medical appointments and pursuing employment, whereas Plaintiff resides and works in New York City. With respect to child support, Defendant does not oppose a reasonable obligation and proposes that, if maintenance is awarded at $8,750.00 per month, the annualized sum of $105,000.00 serve as his income, yielding pro rata shares of 91.25% and 8.75% and a basic obligation of $239.00 per month.
F. Findings Upon the Contested Issues
Plaintiff is the monied spouse, as she candidly concedes. The apparent conflict between the $1,017,981.00 stated in her affidavit and the $1,094,829.00 stated in Defendant's reply is resolved by the exhibits themselves, and it is a difference of definition rather than of veracity. The W-2 annexed as Exhibit 20 reports 2025 wages from [her employer] of $1,094,829.16. (NY St Cts Filing [NYSCEF] Doc No. 47). The figure of $1,017,981.83 appearing in Plaintiff's affidavit is drawn from the support calculator annexed as Exhibit 21 and represents her income after that calculator's estimated statutory deductions of $76,847.17. (NY St Cts Filing [NYSCEF] Doc No. 21). It is her adjusted income, not her gross income. The Court finds that Plaintiff's gross income for 2025 was $1,094,829.16, and that her 2024 adjusted gross income was $920,663.00. Defendant has no present earned income and reports liquid assets of $13.00 in a Bank of America checking account (NY St Cts Filing [NYSCEF] Doc No. 12 at ¶5). The parties' 2024 return was filed jointly and reports adjusted gross income of $992,707.00 (NY St Cts Filing [NYSCEF] Doc No. 28, Exhibit 1, Exhibit A, Form 8879, line 1); the figure of $920,663.00 given in Defendant's affirmation does not correspond to the adjusted gross income shown upon that return.
The parties have maintained separate households since 2022, and this action was commenced in January 2025. Defendant made no formal application for temporary support until February 2026.
Turning to the worksheet annexed as Defendant's Exhibit "D," the answer "no" to the question whether there are children of the marriage under twenty-one years of age is incorrect, because the child was nineteen when the application was made. (NY St Cts Filing [NYSCEF] Doc No. 17). The Court declines, however, to attach to that answer the significance Plaintiff urges. Plaintiff is both the maintenance payor and the custodial parent, and under Domestic Relations Law § 236[B][5-a][c][2] the formula applicable where the payor is the custodial parent is the same formula that applies where no child support is payable. The erroneous answer therefore had no effect upon the guideline computation. The Court treats it as a form error rather than as a deliberate misrepresentation, and it does not enter into the Court's assessment of Defendant's earning capacity, his credibility, or the fee application. The Court does note, separately, that the moving papers made no mention of the child of the marriage at all, which bears upon the completeness of the application and is one reason the child support issue is reached only by way of cross-motion.
It is undisputed that Defendant has received in excess of $20,000.00 in sums characterized on his own sworn Statement of Net Worth as loans, including $12,500.00 from the person whose residency is disputed and a further sum from an unnamed lender, and that he traveled to Turks and Caicos shortly before making this application. The record does not establish whether those sums were advanced on a single occasion or periodically, whether repayment is expected, or whether further advances are anticipated. The parties dispute whether a companion resides with Defendant; on photographs on the one hand and a redacted lease on the other, that question cannot be resolved upon papers. It is undisputed that no settlement communication passed between counsel before the motion was filed and that no disclosure has been exchanged.
G. Proceedings Since the Motions Were Submitted
The parties and counsel appeared before Justice Pearlman on April 10, 2026 and executed a Preliminary Conference Stipulation and Order (NY St Cts Filing [NYSCEF] Doc No. 55). That order records that the summons was filed on January 13, 2025, that the parties were married on January 12, 2006, and that the child of the marriage, [R.S.], was born in May 2006. The grounds for divorce are resolved. The order carries the notation that the child is emancipated for custody purposes, which reflects her age and her residence at university; it is not a determination that she is emancipated for purposes of support, which continues until the age of twenty-one unless emancipation is established, and no party contends otherwise. Maintenance, child support, equitable distribution, and counsel fees are each recorded as unresolved.
By a stipulation of the same date, so-ordered (NY St Cts Filing [NYSCEF] Doc No. 56), the parties agreed that both would execute a tax indemnification agreement and the joint 2025 tax return on or before April 14, 2026, and that Defendant would provide Plaintiff access to the Connecticut residence on April 18 and April 19, 2026, between 9:00 a.m. and 5:00 p.m., with a third party present, for the purpose of packing and retrieving Plaintiff's personal property and the daughter's personal property, including access to the basement, the daughter's bedroom, and the pink room. The parties having addressed access by their own agreement, and that agreement having been so-ordered, the Court adds nothing to it and directs nothing further upon the subject.
By a stipulation dated June 8, 2026, so-ordered (NY St Cts Filing [NYSCEF] Doc No. 59), the parties agreed to engage two real estate brokers, [names redacted], to be contacted jointly by counsel, to provide a recommended listing price and an anticipated sale price for the property at [address redacted], Bethlehem, Connecticut, and further agreed that on June 9, 2026 Defendant would take the Chevrolet Tahoe to be serviced at a dealership in Watertown, Connecticut, with payment for the service to be made by Plaintiff. Since these motions were submitted the parties have therefore themselves confirmed both that the marital residence is being valued with a view to sale and that Defendant continues to operate the vehicle at Plaintiff's expense.
H. The Scope of These Findings
Every finding in this Decision and Order, including those concerning the parties' marital roles, Defendant's medical condition and earning capacity, the residency of any third party at the Connecticut residence, and the parties' respective incomes and assets, is made provisionally, upon an incomplete record, and solely for the purpose of determining these pendente lite applications. No finding here is binding upon the trial court, and none is intended to limit the proof either party may offer after disclosure is complete.
III. Conclusions of Law
A. The Governing Statutory Framework
Temporary maintenance is governed by Domestic Relations Law § 236[B][5-a]. Where, as here, the payor is also the custodial parent, the guideline amount is the lesser of the two computations prescribed by Domestic Relations Law § 236[B][5-a][c][2], namely thirty percent of the payor's income up to the statutory income cap less twenty percent of the payee's income, and forty percent of the combined income of the parties less the payee's income. Where the payor's income exceeds the cap, Domestic Relations Law § 236[B][5-a][d] permits the court to award additional maintenance upon the excess after consideration of the factors enumerated in Domestic Relations Law § 236[B][5-a][h][1], which include the age and health of the parties, the present and future earning capacity of the parties, the need of one party to incur education or training expenses, the existence and duration of a pre-marital joint household, the reduced or lost earning capacity of the payee, the standard of living established during the marriage, and any other factor the court expressly finds just and proper. Domestic Relations Law § 236[B][5-a][d][3] requires that the court set forth in writing the factors it considered and the reasons for any such additional award, and this Court does so below. The Court does not adjust the guideline amount itself as unjust or inappropriate, and the provisions of Domestic Relations Law § 236[B][5-a][h][2] governing such an adjustment are therefore not invoked.
Temporary child support is governed by Domestic Relations Law § 236[B][7][a], which directs that the court shall order either or both parents to pay temporary child support without requiring a showing of immediate or emergency need, and notwithstanding that information concerning income and assets may be unavailable, and by the Child Support Standards Act, Domestic Relations Law § 240[1-b]. The Court notes that Plaintiff's counsel attributes to Domestic Relations Law § 236[B][7][a] a second passage authorizing the court to direct a spouse to provide suitably for the support of the other. That passage does not appear in the cited provision, and the Court's authority to award temporary maintenance rests upon Domestic Relations Law § 236[B][5-a].
The statute supplies the standard, and the Court rests upon it. The guideline computation measures the parties' relative incomes; the factors enumerated at Domestic Relations Law § 236[B][5-a][h][1] direct the Court to the standard of living established during the marriage, the present and future earning capacities of the parties, their ages and health, and the duration of the marriage. An award made upon those factors is a provisional accommodation designed to hold matters in place until the merits are tried, and the speedy trial of this action, rather than continued motion practice, remains the surest corrective for any perceived inequity in it.
B. Imputation of Income to Defendant
In fixing a support obligation a court is not bound by a party's reported income and may proceed instead upon the party's actual earning capacity, considering prior employment experience and the income the party is capable of earning by honest efforts given his education and opportunities (see Morille-Hinds v. Hinds, 87 AD3d 526 [2d Dept 2011], and the authorities there collected, including Matter of Solis v. Marmolejos, 50 AD3d 691 [2d Dept 2008]). The discretion so conferred is not unbounded. In Morille-Hinds itself the Second Department disturbed the particular imputation because the amount selected lacked support in the record, and that limitation governs here: the Court must be able to explain not merely that some income should be imputed but why the figure chosen measures present capacity.
A court may also consider money, goods, or services a party receives from relatives or friends (see Vaysburd v. Vaysburd, 217 AD3d 723 [2d Dept 2023]; Nosratabdi v. Aroni, 198 AD3d 976 [2d Dept 2021]; Matter of Sinzieri v. Kaminsky, 218 AD3d 592 [2d Dept 2023]; Bradley v. Bakal, 180 AD3d 443 [1st Dept 2020]), and may impute where a party's account of his finances is not credible (see Matter of Harry T. v. Lana K., 217 AD3d 537 [1st Dept 2023]). Here again the authorities carry their own limits. In Vaysburd the Second Department sustained a refusal to impute where the record did not establish the asserted assistance, and in Matter of Harry T. the credibility findings followed a lengthy hearing rather than a paper submission.
The Court therefore addresses earning capacity and third-party assistance separately.
As to employment capacity, the record supplies an evidentiary anchor. Defendant's last actual full-time employment produced $51,923.00 for approximately three months of work in early 2016, a rate which annualizes to approximately $207,692.00. Plaintiff places his earnings in his more senior positions at approximately $300,000.00 per year, and his reported earnings of $224,999.00 in 2010 and $172,200.00 in 2011 are consistent with that range. He has offered no proof of any effort to obtain employment, a deficiency the First Department found material in Bradley v. Bakal, 180 AD3d 443 [1st Dept 2020], and no medical proof that he is unable to work. At the same time, the figures upon which Plaintiff relies are a decade and more old, Defendant is fifty-six years of age, he has been absent from the workforce for ten years, and he sustained serious medical events in September 2024 and January 2025 which Plaintiff concedes occurred. The authorities Plaintiff invokes for a larger figure arose in materially different settings: Rahal v. Taormina, 242 AD3d 674 [1st Dept 2025], concerned parties with substantial and comparatively recent earnings and steady employment during the marriage, and M.M. v. D.M., 159 AD3d 562 [1st Dept 2018], rested upon an extensive trial record including expert medical testimony. A decade's absence from a field in which currency and client relationships are the stock in trade must be given weight, and a failure to prove total disability does not by itself establish the ability to command any particular salary.
The record also contains affirmative evidence of present capacity, and the Court identifies it rather than resting upon the discounting of old figures alone. Defendant's own sworn submissions state that he does not seek to avoid work but seeks the means to return to it, and that temporary maintenance is necessary to enable him to re-establish himself in the workforce. He states that unpaid balances with Frontier produced internet outages that prevented stable communication with recruiters and potential employers (NY St Cts Filing [NYSCEF] Doc No. 12 at ¶11). That is his representation, not Plaintiff's, and it presupposes that he is presently available for employment and interested in obtaining it. The Court places no weight upon his further assertion that employers review credit reports, which is unsupported by any evidence and is in any event unnecessary to the result. They establish willingness and availability. They do not, standing alone, establish that he can immediately secure a position at any particular salary, and the Court does not treat them as doing so. His functional capacity requires a more careful treatment, because what matters is capacity after the medical events rather than before them. The acquisition of the Connecticut property, the execution of the purchase agreement, and the supervision of the extensive renovations occurred in and after 2020, well before the corneal ulcer of September 2024 and the fall of January 2025. Those activities bear upon his aptitude and his experience; they do not establish post-injury capacity. What does bear upon the present is the conduct Plaintiff alleges to have occurred after the injuries, namely repair and renovation work at the Connecticut house, driving long distances from Bethlehem to New York City, and travel to Turks and Caicos in the period immediately preceding this application, the last of which is supported by the roaming records at Exhibit 19. (NY St Cts Filing [NYSCEF] Doc No. 46). Defendant denies none of it, and his counsel characterizes these as Defendant's "limited activities," a characterization which concedes that they occurred while disputing their significance. The Court draws from them the limited inference they will bear: that Defendant is not physically incapacitated and that no medical barrier to employment has been demonstrated.
What the record does not contain is vocational evidence, salary survey data, or proof of a single application made or rejected, and the Court says so plainly. The figure selected must nonetheless have a basis in law and fact (see Morille-Hinds v. Hinds, 87 AD3d 526 [2d Dept 2011]), and the Court identifies its basis. The Court fixes employment capacity at $100,000.00 per annum. That sum is anchored to the lowest annual compensation documented anywhere in this record, $172,200.00 in 2011, and to the annualized rate of his last actual employment, approximately $207,692.00, and is discounted by more than half from the latter to account for the ten-year interruption, Defendant's age, the medical events of 2024 and 2025, and the absence of evidence that he can today command his former compensation. It is deliberately not anchored to his peak earnings, which the Court has declined to adopt. The derivation of the figure, and the evidence for each component of it, is as follows.
Reported earnings, 2010: $224,999.00 (NY St Cts Filing [NYSCEF] Doc No. 26 at ¶21); NY St Cts Filing [NYSCEF] Doc No. 49 at ¶9).
Reported earnings, 2011: $172,200.00 (NY St Cts Filing [NYSCEF] Doc No. 49 at ¶9).
Last actual employment, [his last employer], three months in 2016: $51,923.00, an annualized rate of approximately $207,692.00 (NY St Cts Filing [NYSCEF] Doc No. 26 at ¶21).
Age: fifty-six (NY St Cts Filing [NYSCEF] Doc No. 28), Exhibit 1, ¶ I(b), [date of birth redacted].
Absence from the workforce: approximately ten years, March 2016 to date.
Documented medical events: September 2024 and January 2025 (NY St Cts Filing [NYSCEF] Doc No. 12, ¶¶ 2-4]), conceded by Plaintiff (NY St Cts Filing [NYSCEF] Doc No. 26 at ¶20).
Proof of present total inability to work: none.
Vocational, salary survey, or labor market proof of present earning capacity: none.
Amount imputed: $100,000.00 per annum.
The figure is less than one half of the annualized rate of Defendant's last actual employment and is below the lowest annual compensation documented anywhere in this record. It is a provisional support finding drawn from the historical earnings evidence and from the statutory circumstances set forth below, and it is subject to prompt modification upon vocational, medical, labor market, or actual income proof. It is not a finding that Defendant can today obtain a position paying $100,000.00; it is a finding, upon the only evidence in this record bearing upon the question, of the capacity that must be attributed to him for the limited purpose of fixing temporary support.
Domestic Relations Law § 240[1-b][b][5][iv] directs that, in attributing or imputing income, the court consider the parent's specific circumstances to the extent known, including employment and educational history, age, health, past and present income, barriers to employment, the record of seeking work, the local job market, the availability of employers willing to hire, and prevailing earnings levels, and that the court set forth its findings. A vocational expert is not invariably required. The Court's findings upon those circumstances are as follows. Defendant is fifty-six years of age, university educated, and physically able to travel, to drive long distances, and to perform work upon a house. His employment history is one of senior executive positions in advertising from approximately 1996 through 2016. His barriers to employment are real and are identified: a ten-year absence from a field in which currency and relationships are the stock in trade, his age, and the medical events of September 2024 and January 2025. His record of seeking work is undocumented; he has produced no application, no rejection, and no offer. The record contains no evidence of the local job market, of employers willing to hire, or of prevailing earnings levels in his field, and the Court has accordingly taken the measure of prevailing earnings from the only evidence of the kind before it, which is Defendant's own documented compensation, discounted as described above.
As to third-party assistance, the Court imputes nothing. What the record discloses is an aggregate balance of purported loans exceeding $20,000.00 appearing as liabilities on Defendant's own Statement of Net Worth. It does not disclose when those sums were advanced, whether they were advanced periodically or on isolated occasions, whether repayment is expected, or whether any further advance is anticipated. An aggregate balance of borrowing is not an annual income stream, and to convert one into the other on this record would be precisely the unsupported quantification that Morille-Hinds forbids and that Vaysburd declined to sanction. Should disclosure establish a recurring pattern of gifts or support, the question may be revisited.
The total imputation is therefore $100,000.00 per annum, made for the purposes of these applications only. Because the figure rests upon inference from the evidence identified rather than upon vocational or medical proof, the Court fixes a means of testing it. Either party may apply upon notice to modify or vacate the imputation upon a supported showing, which may consist of evidence of efforts made to obtain employment, medical evidence of limitations upon the capacity to work, vocational or labor market evidence bearing upon prevailing earnings for a person of Defendant's background, or evidence of income or support actually received. No minimum period of job seeking is required, and nothing here limits the evidence either party may offer. Separately, and without prejudice to any such application, Defendant shall report at the conference directed below upon the efforts he has made to obtain employment since the commencement of this action.
C. The Guideline Maintenance Calculation
The statutory income cap applicable to the maintenance payor was $228,000.00 when Defendant's application was filed on February 10, 2026, and increased to $241,000.00 effective March 1, 2026, by the biennial adjustment tied to the Consumer Price Index for all urban consumers, which is to say before Plaintiff's Cross-Motion was filed on March 10, 2026. Because the retroactive period straddles that date, the Court states the guideline amount under both figures. The $5,700.00 reflected in Defendant's Exhibit "D" is thirty percent of the former cap of $228,000.00, divided by twelve, with no income attributed to Defendant, and it is therefore superseded in two respects: the cap has changed, and the Court has imputed income to him. (NY St Cts Filing [NYSCEF] Doc No. 17).
Applying Domestic Relations Law § 236[B][5-a][c][2] with Plaintiff's income taken at the cap and Defendant's income taken at the imputed sum of $100,000.00, the computations are as follows.
For the period February 10, 2026 through February 28, 2026, cap of $228,000.00:
First computation: $68,400.00 less $20,000.00, equals $48,400.00 per annum.
Second computation: $131,200.00 less $100,000.00, equals $31,200.00 per annum.
Guideline amount, the lesser: $31,200.00 per annum, or $2,600.00 per month.
For the period commencing March 1, 2026, cap of $241,000.00:
First computation: $72,300.00 less $20,000.00, equals $52,300.00 per annum.
Second computation: $136,400.00 less $100,000.00, equals $36,400.00 per annum.
Guideline amount, the lesser: $36,400.00 per annum, or $3,033.33 per month.
No deduction has been taken from the imputed sum for Social Security or Medicare taxes, because Defendant pays none upon income he does not receive, and the statutory deduction is confined to such taxes actually paid.
The Court has applied each cap to the period during which it was in force. Lest that allocation be thought to drive the result, the Court states expressly that it does not. The total award fixed below is determined by the needs found, the ability of Plaintiff to pay, and the statutory factors, and it would be the same were a single cap applied to the whole of the retroactive period, whether the $228,000.00 cap in force when the application was filed or the $241,000.00 cap in force upon this determination, the above-cap component adjusting accordingly to $2,699.00 or to $2,265.67 per month. The Court so determines in the alternative.
D. Additional Maintenance Upon Income Exceeding the Cap
Plaintiff's income greatly exceeds the cap, and the Court must therefore decide whether to award additional maintenance upon the excess under Domestic Relations Law § 236[B][5-a][d].
Defendant's own proposal, that the formula be applied to a payor income of $350,000.00 in place of the cap, is rejected. That approach is not the exercise of discretion the statute contemplates; it substitutes a different cap chosen by the movant for the statutory one and then applies the formula mechanically, without reference to any factor. The statute requires the opposite: a reasoned award upon the excess after consideration of the enumerated factors. The Court also notes that Plaintiff commenced this action in January 2025 and that Defendant sought no temporary relief until February 2026, a delay which the First Department in Rahal v. Taormina, 242 AD3d 674 [1st Dept 2025], treated as bearing upon the absence of exigency when reviewing a pendente lite determination. That observation is not a threshold requirement for guideline maintenance, which is payable without any showing of emergency, and the Court does not treat it as one. It is simply one circumstance among many bearing upon the size of a discretionary award above the cap.
Before fixing that award the Court identifies the needs it finds. Of the expenses Defendant claims, the Court accepts the carrying costs of the residence he occupies at $4,299.00 per month, that being the sum Plaintiff represents she pays for the mortgage, real estate taxes, and homeowner's insurance; propane at $200.00; electricity at $200.00; food at $740.00; clothing at $150.00; unreimbursed medical expenses at $326.36; and automotive expenses at $350.00 for fuel and ordinary upkeep. The Court reduces the claimed household maintenance expense of $1,452.53 to $215.00 per month. The claimed figure is supported by no invoice, contract, or bank record, and it appears to encompass the discretionary upkeep of a rural property, including the pool, the pond, and the pest and security services for which Plaintiff separately paid $11,133.00 in 2025. The $215.00 allowed is not the Court's estimate but Plaintiff's own sworn figure for household maintenance at the Connecticut house, consisting of gardening and landscaping of $100.00, sanitation and trash removal of $45.00, and extermination of $70.00 (NY St Cts Filing [NYSCEF] Doc No. 28), [Exhibit 1, ¶ II(g)]. It is subject to adjustment upon documentation. The Court disallows the claimed general insurance expense of $275.00 as duplicative of the health and automobile insurance Plaintiff maintains and is directed below to continue. The Court does not fund the claimed recreational expense of $350.00 at this stage. It does not hold that recreation is categorically excluded from a temporary award. It holds that where a payee's documented needs must be met in substantial part from earning capacity rather than from cash in hand, shelter, utilities, food, and medical care are funded first, and an undocumented recreational allowance is properly deferred. The reasonable monthly needs the Court finds are therefore as set forth immediately below. One further observation is required in fairness to Defendant. Plaintiff's own Statement of Net Worth puts the utilities for the Connecticut house at $1,230.00 per month, comprising propane of $400.00, electricity of $660.00, a landline of $30.00, internet of $70.00, and home security of $70.00 (NY St Cts Filing [NYSCEF] Doc No. 28), [Exhibit 1, ¶ II(b)]. Defendant claimed $400.00. The Court confines the allowance to the $400.00 he claimed, because a party is not awarded more than he asks, but the disparity is worth recording: on the monied spouse's own sworn figures Defendant understated this category by some $830.00 per month, which is the opposite of the inflation of expenses that a temporary application of this kind often presents.
Carrying costs of the Connecticut residence, being mortgage, real estate taxes, and homeowner's insurance: $4,299.00.
Propane: $200.00.
Electricity: $200.00.
Household maintenance, as allowed: $215.00.
Food: $740.00.
Clothing: $150.00.
Unreimbursed medical: $326.36.
Automotive, fuel and ordinary upkeep: $350.00.
Total: $6,480.36, of which $4,299.00 is housing and $2,181.36 is not.
As to the standard of living established during the marriage, the Court does not characterize that standard by reference to the location of the Connecticut house. The supported expenditures describe a materially comfortable life: private schooling for the child borne by Plaintiff, extensive renovation of a jointly purchased second home, compensation of $200,000.00 to $300,000.00 per year by Defendant during the first phase of the marriage and thereafter compensation to Plaintiff exceeding One Million Dollars, undergraduate expenses of $7,118.00 per month, a $6,500.00 monthly apartment, and financial holdings which Plaintiff's own Statement of Net Worth places, as of the end of 2025 and February 2026, at $904,398.00 in two taxable brokerage accounts and $1,655,327.00 in retirement accounts, with total assets of $2,560,128.00 against liabilities of $457,242.00, that liability being the mortgage upon the Connecticut house (NY St Cts Filing [NYSCEF] Doc No. 28), [Exhibit 1, ¶¶ IV, V]. Defendant's estimate that Plaintiff holds in excess of $4 million in vested equity is not supported and the Court does not adopt it; his underlying point, that her affidavit emphasized negative bank balances while substantial holdings went unmentioned, is. The Court further notes that the two taxable brokerage accounts, which are not retirement assets and are available to her, grew from $558,244.00 at the commencement of this action to $904,398.00 at December 31, 2025, an increase of $346,154.00 during the very period in which she describes herself as operating at a monthly deficit. That standard supports an award above the cap. What limits it is not the marital lifestyle but the fact that the parties have run two households since 2022, that Defendant's own itemization of need is modest by comparison with the household's historical spending, and that a temporary award is a measure of need and ability rather than a share of the payor's income.
Considering the factors set forth in Domestic Relations Law § 236[B][5-a][h][1], and in particular the ages of the parties, Defendant's health and the medical events of 2024 and 2025, the parties' present and future earning capacities, the standard of living described above, the approximately nineteen-year duration of this marriage as of commencement, the substantial disparity in liquidity between a spouse with $13.00 and a spouse with income above One Million Dollars and significant equity holdings, and the needs found above, the Court awards additional maintenance upon income exceeding the cap so as to bring the total temporary maintenance obligation to $5,299.00 per month. The reasons for the additional award are those set forth in this section, stated in writing as Domestic Relations Law § 236[B][5-a][d][3] requires, and the composition of the award is as follows. For the period February 10, 2026 through February 28, 2026, the award consists of the guideline amount of $2,600.00 per month plus additional maintenance of $2,699.00 per month. For the period commencing March 1, 2026, it consists of the guideline amount of $3,033.33 per month plus additional maintenance of $2,265.67 per month.
The award shall be satisfied in the following manner. Plaintiff shall pay $4,299.00 per month directly to the mortgagee, the taxing authority, and the insurer of the Connecticut residence, as she has proposed and as she has been doing voluntarily, and shall pay the balance of $1,000.00 per month as a direct payment to Defendant. The $4,299.00 component is a credit in the amount actually paid. If the carrying costs change, whether by reason of an escrow adjustment, a tax reassessment, or a change in premium, the party first learning of the change shall notify the other in writing within fifteen days, and the direct payment component shall be adjusted so that the total obligation remains $5,299.00 per month. Defendant shall be solely responsible for the utilities and ordinary upkeep of the residence he occupies.
The relationship between the award and the needs found should be stated plainly and arithmetically. The reasonable non-housing needs found are $2,181.36 per month. The direct payment component is $1,000.00, from which the child support fixed below is deducted, leaving $597.83 in cash. The monthly shortfall is therefore $1,583.53, before the child's medical add-ons. That shortfall is the deliberate consequence of the imputation. Imputed capacity of $100,000.00 per annum is approximately $8,333.33 per month before taxes, and the shortfall is roughly nineteen percent of that sum. The Court has accordingly fixed an award which is met in full if Defendant realizes even a fraction of the capacity found. An award calculated as though the imputed capacity did not exist would fix support upon a premise, that Defendant has no earning capacity whatever, which the Court has considered and rejected upon the evidence identified in Section III[B] and upon the findings made there under Domestic Relations Law § 240[1-b][b][5][iv]. The shortfall follows from that capacity finding and from the factors enumerated in Domestic Relations Law § 236[B][5-a][h][1]. It is not a device to compel employment, and the Court does not employ it as one. If the capacity finding proves mistaken, the correction is the application described in Section III[B], which the Court will entertain promptly.
E. Temporary Child Support and the Statutory Add-Ons
The obligation to support a child does not abate because a parent is himself in need, and Domestic Relations Law § 236[B][7][a] requires an award of temporary child support without a showing of immediate need. The child resides with Plaintiff when not at school and has been supported by Plaintiff alone. Defendant does not oppose a reasonable obligation.
The income inputs require explanation, and the Court has the primary documents before it. Defendant's income for purposes of the Child Support Standards Act consists of the imputed sum of $100,000.00 together with the annualized temporary maintenance of $63,588.00, for a total of $163,588.00. No deduction is taken for Social Security and Medicare taxes, because Domestic Relations Law § 240[1-b][b][5][vii] permits the deduction only of such taxes as are actually paid, and Defendant pays none upon income that is imputed rather than received. To that extent the Court departs from the computation at Exhibit 21, which deducted an estimated $13,818.20 from a sum that was itself hypothetical. (NY St Cts Filing [NYSCEF] Doc No. 48). As to Plaintiff, Domestic Relations Law § 240[1-b][b][5][vii] provides that Social Security and Medicare taxes actually paid, and New York City income tax actually paid, shall be deducted from income. The deduction is mandatory rather than elective, and the Court does not treat the omission of any claim to it as a waiver. The 2025 Form W-2 issued to Plaintiff by [her employer] and annexed as Exhibit 20 (NY St Cts Filing [NYSCEF] Doc No. 47 at 2) establishes the amounts. It reports at Box 4 Social Security tax withheld of $10,918.20, at Box 6 Medicare tax withheld of $25,833.08, and at Box 19 local income tax of $45,906.20, the locality shown at Box 20 being "NYC RES," a total of $82,657.48. Those figures are amounts withheld and remitted on Plaintiff's behalf rather than a final reconciliation of tax due upon a filed return. The Court treats amounts so withheld and remitted as taxes actually paid for purposes of Domestic Relations Law § 240[1-b][b][5][vii], subject to correction should the wage statement prove incomplete or should later tax documentation establish a different figure. Plaintiff's adjusted income is accordingly $1,094,829.16 less $82,657.48, or $1,012,171.68. That result differs from the $1,017,981.83 appearing at Exhibit 21 because the calculator estimated the deductions at $76,847.17 rather than taking them from the wage statement, and the estimate proved low as to both the Medicare and the New York City components. (NY St Cts Filing [NYSCEF] Doc No. 48). The Court uses the documented figures rather than the estimate, and either party may apply for a correction should the wage statement be shown to be incomplete.
Deducting the maintenance awarded, Plaintiff's income is $948,583.68 and Defendant's is $163,588.00, for a combined parental income of $1,112,171.68. Defendant's pro rata share is 14.71% and Plaintiff's is 85.29%, computed upon the unrounded ratio. Applying the statutory percentage of seventeen percent for one child to the combined parental income cap of $193,000.00, which increased from $183,000.00 effective March 1, 2026, produces a combined basic obligation of $32,810.00 per annum, or $2,734.17 per month. Defendant's share, computed upon the unrounded ratio, is $402.17 per month, and basic temporary child support is fixed in that sum, retroactive to March 10, 2026, the date of the filing of the Cross-Motion.
The Court has considered whether to apply the statutory percentage, or any percentage, to the combined parental income above the cap, as Domestic Relations Law § 240[1-b][c][3] requires it to do by reference to the factors in Domestic Relations Law § 240[1-b][f]. It declines to do so at this stage. The obligation fixed at the cap already exceeds what Defendant can pay from resources he actually possesses and is payable only because it is offset against maintenance. Plaintiff, whose income is the source of virtually all of the above-cap combined income, is the custodial parent and would in practical effect be paying a further share to herself through a reduction of the maintenance she pays. The child's substantial additional expenses are the college costs addressed below, which are better allocated on a complete record. The declination is provisional and without prejudice to a different determination at trial.
Because the child support obligation is funded entirely by the maintenance award, and to spare the parties the exchange of checks, the child support shall be deducted from the direct payment component of the maintenance, as Defendant himself proposes. Plaintiff shall accordingly pay Defendant the net sum of $597.83 per month. Domestic Relations Law § 240[1-b][b][5][iii][I] includes maintenance actually paid in the income of the payee, and Domestic Relations Law § 240[1-b][b][5][vii][C] permits its deduction from the income of the payor where the order provides for a specific adjustment upon the termination of the maintenance. The Court therefore fixes that adjustment now rather than leaving it to a future application. Upon the termination of the temporary maintenance awarded here, and unless a superseding order then provides otherwise, Defendant's income for child support purposes will be $100,000.00 and Plaintiff's will be $1,012,171.68, for a combined parental income of $1,112,171.68; the pro rata shares will be 8.99% for Defendant and 91.01% for Plaintiff; and Defendant's basic child support obligation will be $245.84 per month, computed upon the unrounded ratio. The pro rata shares of the add-ons will adjust to the same percentages. These figures are subject to any superseding order of this Court.
Applying the same pro rata shares, Defendant shall be responsible for 14.71% and Plaintiff for 85.29% of the child's unreimbursed medical expenses and of the cost of the child's medical insurance coverage. The Court does not apportion the entire family premium of $733.00 per month, which on this record covers Plaintiff, Defendant, and the child. Plaintiff shall furnish Defendant with documentation from the carrier or her employer establishing the incremental cost attributable to the child's coverage, and the pro rata shares shall apply to that amount alone. A party who pays such an expense shall furnish the other with proof of payment, and the nonpaying party shall reimburse the paying party for the nonpaying party's allocated share within thirty days after receipt of that proof. For this purpose the incremental cost of the child's coverage means the difference between the premium payable with the child covered and the premium payable without her, as established by the carrier or by Plaintiff's employer.
As to college tuition, room, and board at [the child's university], the Court fixes no contribution at this time. Defendant has no present resources from which such a contribution could be made, the annual sum at issue is substantial, and the allocation implicates matters requiring a developed record, including the exhaustion of the child's 529 accounts, the parties' respective contributions to her education, and any agreement or course of conduct between them. That branch of the Cross-Motion is denied without prejudice.
F. Exclusive Use of the Automobile
The branch of the Cross-Motion seeking exclusive use of the automobile is denied. The Chevrolet Tahoe is registered to the Connecticut residence, which lies in a rural area not served by public transportation, and it is Defendant's only means of attending medical appointments, obtaining necessities, and pursuing the employment which Plaintiff urges, and which this Court has found he retains the capacity to obtain. The Court does not overlook that the vehicle is a 2016 Chevrolet Tahoe titled in Plaintiff's name alone, acquired on December 1, 2022 with funds she describes as an inheritance or gift from her parents, nor that she carries $533.00 per month for rental cars (NY St Cts Filing [NYSCEF] Doc No. 28), [Exhibit 1, ¶¶ II(i), IV(E)(7.1)]. Title and the source of acquisition funds are matters for equitable distribution; they do not govern temporary use, which turns upon need. Plaintiff resides and works in New York City, where public transportation is available to her, and the rental expense she incurs is the cost of convenience in a city that does not require a car, while the vehicle is the only means by which Defendant can reach a physician, a shop, or an employer. The parties have in any event resolved the immediate question themselves: by their so-ordered stipulation of June 8, 2026 they agreed that Defendant would deliver the vehicle for servicing at a dealership in Watertown, Connecticut, with Plaintiff to pay for the service, an arrangement that presupposes Defendant's continued possession and use of it. Defendant shall have exclusive use of the vehicle pendente lite, shall bear the cost of fuel and routine maintenance, and Plaintiff shall continue to maintain the automobile insurance she has been paying at $265.00 per month, which the Court has treated as a continuing benefit to Defendant in assessing his needs.
G. Interim Counsel Fees
Domestic Relations Law § 237[a] governs this application and creates a rebuttable presumption that counsel fees shall be awarded to the less-monied spouse in a matrimonial action, casting upon the monied spouse the burden of showing why the award should not be made. The purpose is to secure a rough equality in the resources available to the parties so that neither is disadvantaged for want of the means to prosecute or defend, and courts have not hesitated to fund meaningful interim representation where the parties' resources are substantially unequal (see Carlin v. Carlin, 120 AD3d 734 [2d Dept 2014]). The Court notes that Defendant's papers cite that decision at 210 AD3d 734; the correct citation is as stated here.
The presumption does not dictate the amount. In fixing a fee the court should review the financial circumstances of both parties together with all of the other circumstances of the case, which may include the relative merit of the parties' positions (see Johnson v. Chapin, 12 NY3d 461 [2009], quoting DeCabrera v. Cabrera-Rosete, 70 NY2d 879 [1987]). Litigation conduct is a permissible consideration: in Schorr v. Schorr, 113 AD3d 490 [1st Dept 2014], the First Department sustained an award against the spouse who had engaged in extensive and insubstantial motion practice, and in Parker v. Parker, 216 AD3d 433 [1st Dept 2023], the court weighed unreasonable litigation positions in assessing a fee application, although the applicant there had received a substantial distributive award, a circumstance entirely absent here, where Defendant has $13.00 in liquid assets.
Plaintiff has not rebutted the presumption, and an award is warranted. The question is its size, and the billing records annexed as Exhibit "C" permit the Court to answer it precisely. (NY St Cts Filing [NYSCEF] Doc No. 16). The twelve invoices rendered between September 6, 2025 and April 4, 2026 total $19,040.44, and the cumulative total through the invoice of February 3, 2026 is $10,640.75, which is the figure given in the moving papers. The $19,040.44 is therefore the total charged from inception, not a remaining balance. Of that sum Defendant has paid $10,640.75. The unpaid balance for services rendered is $8,399.69, and counsel additionally seeks a retainer replenishment of $3,500.00, producing the total outstanding of $11,899.69 shown on the final invoice. The trust account balance is zero. All of the time reflected in the invoices was billed by [Defendant's counsel] at $625.00 per hour; no other timekeeper has billed to the matter, notwithstanding the reference in his affirmation to the rates of other attorneys and staff. The invoices also corroborate his statement that approximately ten hours were devoted to the preparation of this application, the invoices of February 2 and February 3, 2026 reflecting 9.6 hours between them.
The Court does not accept the proposition that the expense of this motion was avoidable. Defendant is receiving substantive relief upon it, and a motion that succeeds is not rendered unnecessary by the absence of a preceding letter. It is undisputed, upon Plaintiff's affidavit and her counsel's affirmation and without contradiction in the reply, that no settlement proposal, telephone call, or request for the exchange of financial information preceded the filing. The Court records that fact and directs the parties to confer as set forth below, but it makes no finding upon this record that the omission increased the fees incurred by either side, and the award that follows is not reduced upon that ground.
An interim award may fund both work already performed and work reasonably anticipated. In Messinger v. Messinger, 24 AD3d 631 [2d Dept 2005], the Second Department rejected an award of the entirety of a party's unspecified future counsel fees while recognizing that a specific award supported by fees incurred or reasonably anticipated is permissible. Defendant requests a specific sum, and the Court does not regard the prospective funding of this litigation as barred. The difficulty is one of support. The work already performed is documented. The work imminently required is identifiable: the exchange of statements of net worth and document demands, the preliminary conference directed below, the subpoena and analysis of Plaintiff's compensation, equity, and retirement records, which Defendant has placed squarely in issue, and the negotiation or motion practice that will follow. The balance of the request, however, rests upon services described only in categorical terms, depositions, subpoenas, meetings with witnesses, review of appraisals, trial preparation, and trial, with no estimate of the hours any of them will consume and no allocation among the timekeepers whose rates the retainer agreement sets out. The Court cannot test an estimate presented in that form. The appropriate course is an award sufficient to fund the documented fees and the identifiable next phase, with leave to renew upon a showing that supplies the missing detail.
It should be noted, and it cuts against the starkest version of Defendant's account of his circumstances, that he has managed to pay his attorneys $10,640.75 during a period in which he swears to liquid assets of $13.00. That is consistent with the third-party advances he has disclosed, and it is a further reason why the Court has not accepted his implicit premise that he is wholly without resources. It does not, however, alter the conclusion that he cannot fund this litigation against a spouse earning in excess of One Million Dollars a year. The Court therefore fixes the award by computation rather than by impression. The documented balance outstanding is $11,899.69, comprising $8,399.69 in unpaid charges for services rendered and the $3,500.00 retainer replenishment provided for by the retainer agreement. The next identifiable phase, consisting of the exchange and review of statements of net worth and the responses to the discovery demands served on April 30, 2026 (NY St Cts Filing [NYSCEF] Doc No. 57), preparation for and attendance at the compliance conference, subpoena practice directed to Plaintiff's compensation, equity, and retirement records, and the motion practice reasonably to be expected before the next conference, will in the Court's judgment reasonably require approximately thirteen hours, which at the established rate of $625.00 per hour is $8,125.00. The sum of $11,899.69 and $8,125.00 is $20,024.69. The Court fixes the award at $20,000.00, reducing the computed figure by $24.69, and does not describe that reduction as rounding. The award accordingly comprises the unpaid balance, the replenishment, and approximately thirteen hours of anticipated work, and nothing beyond that phase. The Court notes that the rate of $625.00 is modest by comparison with the schedule annexed to Plaintiff's own retainer agreement, which runs from $475.00 for the most junior associate to $1,250.00 for senior partners (NY St Cts Filing [NYSCEF] Doc No. 28), [Exhibit 1, Exhibit C]. The Court awards interim counsel fees of $20,000.00, payable by Plaintiff directly to [Defendant's counsel]. The award is without prejudice to further applications upon a proper showing as the case progresses and is subject to reallocation by the trial court upon the final determination of this action.
H. Retroactivity and Arrears
Temporary maintenance is retroactive to February 10, 2026, the date the application was filed, and temporary child support to March 10, 2026, the date the Cross-Motion was filed. Prospective payments commence October 1, 2026, so that the retroactive period runs from February 10, 2026 through September 30, 2026 and includes the whole of September.
The Court declines to fix a sum certain for arrears upon the present record. To do so would require the Court to assume, in the face of a preserved dispute, both the number and the amount of the voluntary cash payments made. Plaintiff states that she has paid $500.00 per month; Defendant describes the payments as minimal and intermittent. What the Court can and does fix is the rate, the method of computation, and a prompt procedure for resolving the credits.
Arrears shall be computed as follows, upon a thirty-day convention for partial months. The maintenance obligation accrues at $5,299.00 per month. For February 10 through February 28, 2026, that is nineteen thirtieths of $5,299.00, or $3,356.03. For March 1 through September 30, 2026, that is seven full months, or $37,093.00. Total maintenance accruing for the retroactive period is $40,449.03. Plaintiff is credited dollar for dollar with the carrying costs actually paid during the same period, which at $4,299.00 per month for seven and nineteen thirtieths months is $32,815.70, leaving $7,633.33 attributable to the direct payment component. She is credited further with each cash payment she establishes she made. The child support obligation accrues at $402.17 per month from March 10, 2026, which upon the same convention is twenty-one thirtieths of a month for March and six full months thereafter, a total of $2,694.54; that sum is credited against the maintenance arrears and is not separately collected from Defendant. If Plaintiff establishes the full $500.00 per month she asserts, the credit is $3,816.67 and the net arrears payable to Defendant are $1,122.12; if she establishes fewer payments, the net arrears increase by $500.00 for each full monthly payment not established, and as to February 2026 the claimed payment shall be prorated upon the same thirty-day convention. The only open variable is therefore the number of cash payments proven. Not later than seven days before the compliance conference directed below, Plaintiff shall serve and file an affidavit itemizing every payment for which she claims credit, with supporting bank, escrow, or transfer records. Not later than three days before that conference, Defendant shall serve and file a responding affidavit identifying any payment disputed and the basis of the dispute. The deadlines are fixed by reference to the conference rather than to the date of service of notice of entry, so that neither submission can be overtaken by delay in service. Any dispute remaining shall be taken up at the compliance conference directed below, at which the Court will fix the arrears, direct the manner of their payment, and, if a genuine issue of fact remains as to payments made, refer that limited issue for a hearing.
IV. Conclusion and Decretal Paragraphs
Upon the foregoing findings of fact and conclusions of law, it is hereby
ORDERED, that the branch of Defendant's motion [Motion Sequence No. 001] seeking temporary maintenance is GRANTED to the extent set forth herein and is otherwise DENIED; and it is further
ORDERED, that income in the sum of $100,000.00 per annum is imputed to Defendant as employment income for the purposes of these applications only, no income being imputed on account of third-party assistance, and without prejudice to a different determination by the trial court; and it is further
ORDERED, that Plaintiff shall pay temporary maintenance to Defendant in the total sum of $5,299.00 per month, retroactive to February 10, 2026, consisting for the period February 10, 2026 through February 28, 2026 of the guideline amount of $2,600.00 per month together with additional maintenance upon income exceeding the statutory cap of $2,699.00 per month, and consisting for the period commencing March 1, 2026 of the guideline amount of $3,033.33 per month together with additional maintenance upon income exceeding the statutory cap of $2,265.67 per month; and it is further
ORDERED, that the said obligation shall be satisfied by Plaintiff's payment of $4,299.00 per month directly to the mortgagee, the taxing authority, and the insurer of the premises located at [address redacted], Bethlehem, Connecticut, and by the payment of the balance of $1,000.00 per month directly to Defendant, the first component being credited in the amount actually paid, and the party first learning of any change in those carrying costs shall notify the other in writing within fifteen days, whereupon the direct payment component shall be adjusted so that the total obligation remains $5,299.00 per month; and it is further
ORDERED, that Defendant's request that the statutory income cap be replaced by a payor income of $350,000.00, and his request for temporary maintenance of $8,750.00 per month, are DENIED; and it is further
ORDERED, that Defendant shall be solely responsible for the utilities, including propane and electricity, and for the ordinary upkeep of the Connecticut residence during his occupancy of it; and it is further
ORDERED, that Plaintiff shall maintain in full force and effect, and shall not cause to be cancelled, reduced, or permitted to lapse, the existing health insurance coverage for medical, dental, and optical care presently covering the parties and the child of the marriage, and the existing automobile insurance; and it is further
ORDERED, that the branch of Plaintiff's motion [Cross-Motion Sequence No. 001] seeking to fix her temporary maintenance obligation at $4,299.00 per month is GRANTED to the extent set forth herein and is otherwise DENIED; and it is further
ORDERED, that the branch of Plaintiff's Cross-Motion seeking basic temporary child support is GRANTED to the extent that Defendant shall pay basic temporary child support to Plaintiff in the sum of $402.17 per month, retroactive to March 10, 2026, and is otherwise DENIED; and it is further
ORDERED, that the said child support shall be deducted from the direct payment component of the maintenance awarded, so that Plaintiff shall pay Defendant the net sum of $597.83 per month, being the direct payment component of $1,000.00 less child support of $402.17, commencing October 1, 2026 and continuing on the first day of each month thereafter until further order of this Court, and in the event that the direct payment component is adjusted by reason of a change in the carrying costs as provided above, the net monthly payment shall be the adjusted direct payment component less the sum of $402.17; and it is further
ORDERED, that upon the termination of the temporary maintenance awarded herein, and unless a superseding order of this Court then provides otherwise, Defendant's basic child support obligation shall be $245.84 per month and the pro rata shares of the statutory add-ons shall be 8.99% for Defendant and 91.01% for Plaintiff; and it is further
ORDERED, that either party may apply upon notice to modify or vacate the imputation of income made herein upon a supported showing, which may consist of evidence of efforts made to obtain employment, medical evidence of limitations upon the capacity to work, vocational or labor market evidence, or evidence of income or support actually received, no minimum period of job seeking being required; and it is further
ORDERED, that Defendant shall report at the conference directed below upon the efforts he has made to obtain employment since the commencement of this action; and it is further
ORDERED, that the branch of Plaintiff's Cross-Motion seeking a pro rata contribution to the statutory add-ons is GRANTED to the extent that Defendant shall be responsible for 14.71% and Plaintiff for 85.29% of the child's unreimbursed medical expenses and of the incremental cost of the child's medical insurance coverage, and Plaintiff shall within thirty days furnish Defendant with documentation from the carrier or her employer establishing that incremental cost, the pro rata shares to apply to that amount alone, and the party who pays any such expense shall furnish the other with proof of payment within thirty days of the payment, and the nonpaying party shall reimburse the paying party for the nonpaying party's allocated share within thirty days after receipt of that proof, the incremental cost of the child's coverage meaning the difference between the premium payable with the child covered and the premium payable without her; and it is further
ORDERED, that the branch of Plaintiff's Cross-Motion seeking a pro rata contribution toward the college tuition, room, and board of the child of the marriage at [the child's university] is DENIED without prejudice to renewal upon the completion of disclosure or to determination at trial; and it is further
ORDERED, that the branch of Plaintiff's Cross-Motion seeking exclusive use of the automobile is DENIED, and Defendant shall have exclusive use of the Chevrolet Tahoe pendente lite and shall bear the cost of fuel and routine maintenance; and it is further
ORDERED, that the branch of Defendant's motion seeking interim counsel fees is GRANTED to the extent that Plaintiff shall pay $20,000.00 directly to [Defendant's counsel] within thirty days of service of a copy of this Decision and Order with notice of entry, and is otherwise DENIED without prejudice to further application upon a proper showing and subject to reallocation upon the final determination of this action; and it is further
ORDERED, that arrears shall be computed in accordance with Section III[H] of this Decision and Order; that Plaintiff shall, not later than seven days before the compliance conference directed below, serve and file an affidavit itemizing every payment for which she claims credit, with supporting records; that Defendant shall, not later than three days before that conference, serve and file a responding affidavit identifying any disputed payment and the basis of the dispute; and that the Court will fix the arrears and direct the manner of their payment at the conference directed below; and it is further
ORDERED, that access to the premises at [address redacted], Bethlehem, Connecticut is governed by the so-ordered stipulation of the parties dated April 10, 2026 (NY St Cts Filing [NYSCEF] Doc No. 56), and neither party having sought exclusive use and occupancy, none is granted; and it is further
ORDERED, that counsel for the parties shall appear for a compliance conference before the undersigned on October 20, 2026 at 10:00 a.m., the preliminary conference having been held on April 10, 2026, at which conference the arrears shall be determined and the parties shall report upon their compliance with the Preliminary Conference Stipulation and Order dated April 10, 2026 and upon the appraisals obtained pursuant to the so-ordered stipulation dated June 8, 2026, and counsel are directed to confer in good faith concerning the resolution of the financial issues in advance of that date; and it is further
ORDERED, that any relief requested and not expressly granted herein is DENIED; and it is further
ORDERED, that Defendant shall serve a copy of this Decision and Order with notice of entry upon Plaintiff's counsel within ten days of the date hereof.
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