| Davydova v Sasonov |
| 2013 NY Slip Op 05983 [109 AD3d 955] |
| September 25, 2013 |
| Appellate Division, Second Department |
| Yeal Davydova, Appellant, v Nathan Sasonov,Respondent. |
—[*1] Eric Dubinsky, Westbury, N.Y., for respondent.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Queens County (Esposito, J.),dated August 21, 2012, as (1) granted that branch of her motion which was for pendentelite maintenance in the sum of $9,758.80 per month only to the extent of directing thedefendant to pay the monthly mortgage on the marital residence plus $500 per month forelectricity, all of her health and life insurance policies and unreimbursed medical costs,and her car lease payments and insurance, (2) granted that branch of her motion whichwas for pendente lite child support in the sum of $8,984.76 per month only to the extentof directing the defendant to pay her the sum of $2,500 per month, all health and lifeinsurance policies and unreimbursed medical costs for the children, the children's privateschool tuition, and the cost of the children's other extracurricular activities, and (3)granted that branch of her motion which was for an award of an attorney's fee in the sumof $70,000 only to the extent of awarding her the sum of $15,000.
Ordered that the order is modified, on the law, on the facts, and in the exercise ofdiscretion, (1) by deleting the provision thereof granting that branch of the plaintiff'smotion which was for pendente lite maintenance in the sum of $9,758.80 per month tothe extent of directing the defendant to pay the monthly mortgage on the maritalresidence plus $500 per month for electricity, all of the plaintiff's health and lifeinsurance policies and unreimbursed medical costs, and the plaintiff's car lease paymentsand insurance, (2) by deleting the provision thereof granting that branch of the plaintiff'smotion which was for pendente lite child support in the sum of $8,984.76 per month tothe extent of directing the defendant to pay the plaintiff the sum of $2,500 per month, allhealth and life insurance policies and unreimbursed medical costs for the children, thechildren's private school tuition, and the cost of the children's other extracurricularactivities, and (3) by deleting the provision thereof granting that branch of the plaintiff'smotion which was for an award of an attorney's fee in the sum of $70,000 to the extent ofawarding the plaintiff the sum of $15,000, and substituting therefor a provision grantingthat branch of the plaintiff's motion to the extent of awarding her the sum of $45,000; asso modified, the order is affirmed insofar as appealed from, with costs to the plaintiff,and the matter is remitted to the Supreme Court, Queens County, for a new determinationof the plaintiff's pendente lite maintenance award and a new determination of thedefendant's pendente lite child support obligation; in the interim, the defendant shallcontinue to pay the monthly mortgage on the marital residence plus $500 per month forelectricity, and pendente lite child support in the sum of $2,500 per month.[*2]
Domestic Relations Law § 236 (B) (5-a)sets forth formulas for the courts to apply to the parties' reported income in order todetermine the presumptively correct amount of temporary maintenance (see Goncalves v Goncalves,105 AD3d 901, 902 [2013]; Woodford v Woodford, 100 AD3d 875, 876-877 [2012])."In any decision made pursuant to [Domestic Relations Law § 236 (B) (5-a)], thecourt shall set forth the factors it considered and the reasons for its decision" (DomesticRelations Law § 236 [B] [5-a] [c] [2] [b]; see Khaira v Khaira, 93 AD3d 194, 201 [2012]). "[A] courtmay deviate from the presumptive award if that presumptive award is 'unjust orinappropriate' " (Goncalves v Goncalves, 105 AD3d at 902, quoting DomesticRelations Law § 236 [B] [5-a] [e] [2]). Under such circumstances the court must"set forth, in a written order, the amount of the unadjusted presumptive award oftemporary maintenance, the factors it considered, and the reasons that the court adjustedthe presumptive award of temporary maintenance" (Domestic Relations Law § 236[B] [5-a] [e] [2]; see Woodford v Woodford, 100 AD3d at 876-877).Additionally, when a court is unable to perform the calculation established by DomesticRelations Law § 236 (B) (5-a) (c) as a result of being "presented with insufficientevidence to determine gross income, the court shall order the temporary maintenanceaward based upon the needs of the payee or the standard of living of the parties prior tocommencement of the divorce action, whichever is greater" (Domestic Relations Law§ 236 [B] [5-a] [g]).
Here, the Supreme Court failed to comply with the requirements of DomesticRelations Law § 236 (B) (5-a) when it determined the amount of temporarymaintenance to be awarded to the wife (see Khaira v Khaira, 93 AD3d at 201;see also Woodford v Woodford, 100 AD3d at 876-877; cf. Goncalves vGoncalves, 105 AD3d at 902). Accordingly, under the circumstances of this case, weremit the matter to the Supreme Court, Queens County, for a recalculation of theplaintiff's pendente lite maintenance award in accordance with Domestic Relations Law§ 236 (B) (5-a).
Furthermore, under the circumstances of this case, the Supreme Court's award oftemporary child support also must be vacated. The Child Support Standards Act(hereinafter CSSA) provides the formulas to be applied to the parties' income and thefactors to be considered in determining a final award of child support(see Domestic Relations Law § 240 [1-b]). "Courts consideringapplications for pendente lite child support may, in their discretion, apply theCSSA standards and guidelines, but they are not required to do so" (Rubin v Della Salla, 78 AD3d504, 505 [2010] [emphasis added]; see Domestic Relations Law § 236[B] [7]; George v George, 192 AD2d 693, 693 [1993]; accord Maksoud v Maksoud,71 AD3d 643, 644 [2010]; Otto v Otto, 13 AD3d 503, 503 [2004]; but see Meyer vMeyer, 173 AD2d 1021, 1022 [1991]; Quilty v Quilty, 169 AD2d 979, 980[1991]).
Accordingly, the determination of whether to apply the CSSA to an application fortemporary child support is left to the provident exercise of the court's discretion (seeRyder v Ryder, 267 AD2d 447, 447 [1999]; Ryan v Ryan, 186 AD2d 245,246 [1992]; Asteinza v Asteinza, 173 AD2d 515, 516 [1991]; see alsoAnonymous v Anonymous, 63 AD3d 493, 497 [2009]; Rizzo v Rizzo, 163AD2d 15, 16 [1990]). However, under some circumstances, particularly where sufficienteconomic data is available, an award of temporary child support that deviates from thelevel that would result if the provisions of the CSSA were applied may constitute animprovident exercise of discretion, absent the existence of an adequate reason for thedeviation (see Kyriazis v Kyriazis, 260 AD2d 447, 448 [1999]; Ryder vRyder, 267 AD2d at 447; see also Rizzo v Rizzo, 163 AD2d at 16).
Here, the Supreme Court improvidently exercised its discretion in fixing the amountof pendente lite child support to be paid by the defendant (see Kyriazis vKyriazis, 260 AD2d at 448; Ryder v Ryder, 267 AD2d at 447; see alsoRyan v Ryan, 186 AD2d at 246; Asteinza v Asteinza, 173 AD2d at 516;Rizzo v Rizzo, 163 AD2d at 16; cf. Anonymous v Anonymous, 63 AD3dat 497). The court was presented with sufficient evidence concerning the parties'respective incomes and assets, yet it did not provide any reason why it declined toperform the calculations or consider the factors enumerated in the CSSA, and itultimately failed to provide any explanation as to how it determined the amount of theaward. Accordingly, we remit the matter to the Supreme Court, Queens County, for arecalculation of the plaintiff's pendente lite child support award.
The Supreme Court also improvidently exercised its discretion in awarding the [*3]plaintiff an attorney's fee in the sum of only $15,000.Considering the parties' relative circumstances, including the disparity in the parties'respective incomes, and considering all of the relevant factors, an award of an attorney'sfee in the sum of $45,000 is appropriate (see Domestic Relations Law §237 [a]; King v King, 98AD3d 1087, 1087-1088 [2012]). Dickerson, J.P., Roman, Miller and Hinds-Radix,JJ., concur.