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Lennox v. Weberman
Factual and Procedural Background
Roy W. Lennox (plaintiff–appellant) sued Joan E. Weberman (defendant–respondent). Supreme Court, New York County (Deborah A. Kaplan, J.) entered an order on February 10, 2012 granting defendant pendente lite relief awarding tax-free maintenance of $38,000 per month, directing plaintiff to pay defendant's unreimbursed medical expenses up to $2,000 per month, awarding interim counsel fees of $50,000 and expert fees of $35,000, and holding plaintiff's cross motion for summary judgment and for counsel fees in abeyance. On March 30, 2012, the court, upon plaintiff's motion for reargument and renewal, adhered to that prior order. The Appellate Division unanimously modified the March 30, 2012 order on the facts to provide that one half of the pendente lite relief shall be treated as an advance on the 50 percent of the parties' Joint Funds to which defendant is entitled under the parties' prenuptial agreement, and otherwise affirmed the order without costs. The appeal from the February 10, 2012 order was dismissed as superseded by the appeal from the subsequent order.
Legal Issues Presented
- Whether the trial court properly applied Domestic Relations Law § 236(B)(5–a)(c)(2)(a) in calculating defendant's temporary spousal maintenance and whether the upward deviation to $38,000/month from guideline support was justified.
- Whether imputing annual income of $2.29 million to plaintiff in computing maintenance was appropriate.
- Whether the parties' prenuptial agreement waived defendant's right to temporary maintenance (pendente lite relief).
- Whether the trial court's awards of interim counsel fees ($50,000) and expert fees ($35,000) were justified.
- Whether one half of the interim pendente lite awards may be treated as an advance on defendant's one-half share of the parties' Joint Funds under the prenuptial agreement.
Arguments of the Parties
Appellant's Arguments
- Plaintiff argued that defendant waived temporary maintenance in the parties' prenuptial agreement.
- Plaintiff raised additional contentions, which the court considered and found unavailing; those contentions are not detailed in the opinion.
Respondent's Arguments
- The opinion does not contain a detailed account of the respondent's specific legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Khaira v. Khaira, 93 A.D.3d 194, 938 N.Y.S.2d 513 [1st Dept.2012] | Application of the formula in Domestic Relations Law § 236(B)(5–a)(c)(2)(a) for calculating temporary spousal maintenance. | The court applied that formula and listed the 19 enumerated factors, explaining how 7 supported an upward deviation to $38,000/month. |
| Hickland v. Hickland, 39 N.Y.2d 1, 382 N.Y.S.2d 475, 346 N.E.2d 243 [1976], cert. denied 429 U.S. 941, 97 S.Ct. 357, 50 L.Ed.2d 310 [1976] | Permits imputation of income based on past income or demonstrated earning potential. | The court imputed annual income of $2.29 million to plaintiff based on his most recent tax return and considered investment income and substantial distributions. |
| Tregellas v. Tregellas, 169 A.D.2d 553, 564 N.Y.S.2d 406 [1st Dept.1991] | Permits awarding pendente lite relief notwithstanding a prenuptial waiver of final maintenance where there is no express exclusion of temporary maintenance. | The court rejected plaintiff's waiver argument and affirmed the award of temporary maintenance. |
| Vinik v. Lee, 96 A.D.3d 522, 947 N.Y.S.2d 424 [1st Dept.2012] | Related authority recognizing the court's discretion to award pendente lite relief despite prenup language. | Used to support the proposition that a waiver of final maintenance in a prenup does not necessarily preclude temporary maintenance. |
| Charpié v. Charpié, 271 A.D.2d 169, 172, 710 N.Y.S.2d 363 [1st Dept.2000] | Interpretation of Domestic Relations Law § 237(a) authorizing courts to award counsel fees to enable a spouse to carry on or defend the action. | The court relied on § 237(a) and Charpié in awarding interim counsel and expert fees to defendant. |
| Prichep v. Prichep, 52 A.D.3d 61, 66, 858 N.Y.S.2d 667 [2d Dept.2008] | Comparative financial positions relevant to awarding counsel fees. | The court noted plaintiff was in a far better financial position than defendant and used this as part of the rationale for fee awards. |
| Wolf v. Wolf, 160 A.D.2d 555, 556, 554 N.Y.S.2d 521 [1st Dept.1990] | Principle that a spouse should not be required to deplete assets to obtain legal representation comparable to the other spouse. | The court cited this authority in support of awarding interim counsel fees to defendant. |
Court's Reasoning and Analysis
The court applied the statutory guideline formula in Domestic Relations Law § 236(B)(5–a)(c)(2)(a) (as articulated in Khaira) and explicitly listed all 19 statutory factors, identifying seven that supported an upward deviation from guideline support of $12,500/month to $38,000/month and concluding that $38,000/month was not unjust or inappropriate. The court imputed $2.29 million annual income to plaintiff based on his most recent tax return and considered investment income, voluntarily deferred compensation, and substantial distributions (noting $50.5 million the prior year) in computing maintenance, consistent with Hickland and the statutory framework. The court rejected plaintiff's contention that the prenuptial agreement waived defendant's claim to temporary maintenance, observing that a waiver of final maintenance does not preclude pendente lite relief absent an express agreement to exclude it (Tregellas; Vinik). Nevertheless, on the facts and considering the prenup's provisions (waiver of rights to separate property, marital living expenses paid from marital property, equal division upon divorce), the Appellate Division modified the order to treat one half of the interim pendente lite awards as an advance on defendant's one-half share of the Joint Funds. The court invoked Domestic Relations Law § 237(a) and related authority (Charpié) to justify awarding interim counsel fees of $50,000 and expert fees of $35,000, finding those amounts reasonable given the parties' combined assets (estimated between $77 million and $90 million) and that the awards were less than the amounts requested by defendant.
Holding and Implications
The Appellate Division modified and otherwise affirmed the trial court's order. Concretely, it upheld the trial court's award of temporary maintenance at $38,000 per month, medical expense payments up to $2,000 per month, interim counsel fees of $50,000, and expert fees of $35,000, but modified the relief so that one half of the pendente lite awards is treated as an advance on the defendant's one-half share of the Joint Funds under the prenuptial agreement. The appeal from the February 10, 2012 order was dismissed as superseded. The decision has the direct effect described above on the parties' interim financial obligations; the opinion does not purport to announce a new legal precedent beyond its application of existing law.
FRIEDMAN
Stein Riso Mantel, McDonough, LLP, New York (Allan D. Mantel of counsel), for appellant. Kenneth David Burrows, New York, for respondent.
FRIEDMAN, J.P., SWEENY, RENWICK, DeGRASSE, JJ.
Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered March 30, 2012, which, to the extent appealed from, upon plaintiff's motion for reargument and renewal, adhered to a prior order, entered February 10, 2012, granting defendant's motion for pendente lite relief to the extent of awarding her tax-free maintenance in the amount of $38,000 per month, directing plaintiff to pay, inter alia, defendant's unreimbursed medical expenses up to $2,000 per month, interim counsel fees of $50,000, and expert fees of $35,000, and holding plaintiff's cross motion for summary judgment and for counsel fees in abeyance, unanimously modified, on the facts, to provide that one half of the aforesaid pendente lite relief shall be treated as an advance on the 50 percent of the parties' Joint Funds (as defined in the parties' prenuptial agreement) to which defendant is entitled pursuant to the prenuptial agreement, and otherwise affirmed, without costs. Appeal from the February 10, 2012 order, unanimously dismissed, without costs, as superseded by the appeal from the subsequent order.
We find that the court properly applied the formula set forth in Domestic Relations Law § 236(B)(5–a)(c)(2)(a) ( see Khaira v. Khaira, 93 A.D.3d 194, 938 N.Y.S.2d 513 [1st Dept.2012] ) in calculating defendant's temporary spousal maintenance award. Specifically, the court listed all 19 of the enumerated factors, explained how 7 of them supported an upward deviation to $38,000 per month from the $12,500 a month in guideline support, and found that $38,000 per month was not “unjust or inappropriate.”
We further find that the court properly imputed an annual income to plaintiff of $2.29 million when it computed maintenance, since this was his income on the most recent tax return. A court need not rely upon the party's own account of his or her finances, but may impute income based upon the party's past income or demonstrated earning potential ( see Hickland v. Hickland, 39 N.Y.2d 1, 382 N.Y.S.2d 475, 346 N.E.2d 243 [1976],cert. denied429 U.S. 941, 97 S.Ct. 357, 50 L.Ed.2d 310 [1976] ). The court properly took into account plaintiff's income from his investments, voluntarily deferred compensation, and substantial distributions ( seeDomestic Relations Law §§ 236[B][5–a][b][4]; 240[1–b][b][5][i], [iv] ), which was $50.5 million the previous year.
We reject plaintiff's argument that defendant waived temporary maintenance in the parties' prenuptial agreement. Notwithstanding that defendant waived any claim to a final award of alimony or maintenance in the prenuptial agreement, the court was entitled, in its discretion, to award pendente lite relief in the absence of an express agreement to exclude an award of temporary maintenance ( see Tregellas v. Tregellas, 169 A.D.2d 553, 564 N.Y.S.2d 406 [1st Dept.1991]; see also Vinik v. Lee, 96 A.D.3d 522, 947 N.Y.S.2d 424 [1st Dept.2012] ). Under the circumstances of this case, however, we deem it appropriate to charge one half of the interim awards against the one-half share of the marital property to which defendant is entitled under the prenuptial agreement. In so doing, we find it significant that the parties provided in the agreement that each waived any right to the separate property of the other, that living expenses were to be paid out of the marital property, and, as previously noted, that the marital property would be equally divided in the event of divorce. We also find it significant that, here, the equal division of the marital property to which the parties agreed will leave each of them with substantial wealth.
Domestic Relations Law § 237(a) authorizes the court in its discretion to direct either spouse to pay counsel fees to the other spouse “to enable the other [spouse] to carry on or defend the action or proceeding” ( see also Charpié v. Charpié, 271 A.D.2d 169, 172, 710 N.Y.S.2d 363 [1st Dept.2000] ). The court's award of interim counsel fees of $50,000 and expert fees of $35,000 was warranted under the circumstances where the parties' assets appear to be anywhere from $77 million to $90 million. In any event, the amounts awarded were significantly less than the $200,000 and $75,000 amounts defendant requested for interim counsel and expert fees, respectively. While there are some funds in defendant's possession, plaintiff is in a far better financial position than defendant (see Prichep v. Prichep, 52 A.D.3d 61, 66, 858 N.Y.S.2d 667 [2d Dept.2008] ), and defendant should not have to deplete her assets in order to have legal representation comparable to that of plaintiff ( see Wolf v. Wolf, 160 A.D.2d 555, 556, 554 N.Y.S.2d 521 [1st Dept.1990] ).
We have considered plaintiff's remaining contentions and find them unavailing.
The Decision and Order of this Court entered herein on February 26, 2013 is hereby recalled and vacated ( see M–1841 decided simultaneously herewith).
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