Opinion
63997
01-18-2018
TS, Plaintiff, v. ES, Defendant.
Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls (Jessica Hugabone Vinson of counsel), for plaintiff. David Donahue Bobick, Glens Falls, for defendant.
Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls (Jessica Hugabone Vinson of counsel), for plaintiff.
David Donahue Bobick, Glens Falls, for defendant.
Robert J. Muller, J.
Plaintiff TS and defendant ES were married on June 6, 2009 and subsequently separated in July 2013. They have one child, LS (born August 8, 2008). On March 1, 2017, the Support Magistrate of the Family Court of Warren County issued an Order of Support whereby plaintiff pays child support to defendant in the amount of $141.98 per week. The Family Court of Warren County (Kershko, J.) then entered an Order of Custody on Consent on March 13, 2017 whereby the parties share joint legal custody of the child and defendant has primary physical custody, with substantial parenting time to plaintiff. This action for a no fault divorce was thereafter commenced on June 2, 2017. Presently before the Court is (1) defendant's motion by Order to Show Cause for an Order awarding interim counsel fees in the amount of $2,000.00; and (2) plaintiff's motion by Order to Show Cause for an Order awarding interim counsel fees in the amount of $2,000.00 and permitting him to claim the parties' child as a dependent on his 2017 income tax return. Each motion will be addressed ad seriatim .
This amount—which was stipulated to by the parties—was calculated by subtracting the amount plaintiff pays to maintain health insurance for the child ($34.02 per week) from the presumptively correct amount of child support ($176.00 per week).
Defendant's Motion
In support of the motion, defendant contends that she is the non-monied spouse, as plaintiff earns $58,306.00 per year while she earns only $27,412.00. She further contends that she "has no funds with which to pay counsel fees."
In opposition, plaintiff contends that the parties have lived separate and apart for more than four years, during which time defendant has been fully self-supporting. Plaintiff further contends that defendant receives assistance from her father, as she resides in an apartment that he owns and pays only $100.00 per month in rent. Plaintiff, on the other hand, resides with his girlfriend and their twin daughters and pays $1,295.00 per month in rent. He also pays child support to defendant and maintains health insurance coverage for defendant, the parties' child and defendant's child from a previous relationship. Finally, plaintiff contends that he has several accounts which have been referred for collection and his vehicle has been repossessed.
Domestic Relations Law § 237 (a) provides, in pertinent part:
"[T]he Court may direct either spouse... to pay counsel fees... directly to the attorney of the other spouse to enable the other party to carry on or defend the action or proceeding as, in the [C]ourt's discretion, justice requires, having regard to the circumstances of the case and of the respective parties. There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse."
In exercising its discretionary power under Domestic Relations Law § 237 (a), a Court should review " ‘the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties' positions, as well as the complexity of the case and the extent of legal services rendered’ " ( Macaluso v. Macaluso , 145 AD3d 1295, 1298 [2016], quoting Teaney v. Teaney , 138 AD3d 1301, 1303 [2016] [internal quotation marks and citations omitted]; see Johnson v. Chapin , 12 NY3d 461, 467 [2009] ).
Under the circumstances, the Court finds that plaintiff has succeeded in rebutting the presumption that defendant is entitled to counsel fees. While plaintiff's annual income is greater than that of defendant, plaintiff appears to have more expenses, as well as more debt. Defendant's motion is therefore denied without prejudice.
Plaintiff's Motion
Turning first to that aspect of the motion which seeks interim counsel fees, plaintiff contends that he is entitled to counsel fees as a result of defendant's conduct in unnecessarily prolonging this action. Specifically, plaintiff contends that this action should be uncontested because child support and custody have been resolved and there is nothing to equitably distribute. Plaintiff further contends that defendant's requests for maintenance and an Order permitting her to claim the parties' child on her tax return each year are frivolous.
In opposition, defendant contends that her requests for ancillary relief are not frivolous. She further contends that her father has raised her rent to $400.00 per month and, with this increase, she is now struggling to pay her debts—which include a $26,000.00 student loan.
Defendant submitted a statement of net worth in support of her motion which was sworn to on August 21, 2017. This statement indicates that she pays rent in the amount of $100.00 per month and has total annual expenses of $14,964.00. Defendant then submitted what appears to be the same statement of net worth—i.e., it has the same signature page sworn to on August 21, 2017—but the statement now indicates that defendant pays rent in the amount of $400.00 per month and has total annual expenses of $32,624.00. At the outset, the Court notes that defendant should have executed an amended statement of net worth, as opposed to simply revising the relevant portions of her original statement. The Court further notes that the math is incorrect in the revised statement; the increase in rent was the only revision and, as such, defendant's annual expenses should have increased to $18,564.00—not $32,624.00.
While the presumption that a non-monied spouse is entitled to counsel fees may be rebutted where "delay is incurred as a result of... obstructionist tactics" ( Johnson v. Chapin , 12 NY3d at 467 ; see Valitutto v. Valitutto , 137 AD3d 1526, 1529–1530 [2016] ), plaintiff has not provided any case law in support of his contention that Domestic Relations Law § 237 provides for the payment of counsel fees by a non-monied spouse to a monied spouse as a result of obstructionist tactics. Indeed, no such case law exists. The Courts have in fact held quite the opposite: "While it is conceivable that a counsel fee award to a nonmonied spouse could be reduced, based on frivolous or wasteful conduct, it is improper to require the nonmonied spouse to pay a portion of the fees of the other more monied spouse" ( Iannone v. Iannone , 34 Misc 3d 387, 390 [Sup Ct, Nassau County 2011] ; see Silverman v. Silverman , 304 AD2d 41, 48–49 [2003] ). The Court thus declines to find that plaintiff is entitled to counsel fees based upon defendant's alleged conduct in prolonging this action.
The Court also declines to find that defendant's requests are frivolous. While it may ultimately be determined that she is not entitled to maintenance or an Order permitting her to claim the parties' child on her tax return each year, she is certainly entitled to seek such relief (compare Valitutto v. Valitutto , 137 AD3d at 1529–1530 [2016] ). In considering the parties' financial circumstances, together with all the other circumstances of the case, the Court finds that it is most equitable—at this juncture—for the parties to be responsible for their own counsel fees. The aspect of plaintiff's motion seeking interim counsel fees is therefore denied without prejudice.
With respect to the second aspect of the motion, plaintiff contends that he should be permitted to claim the parties' child on his 2017 tax return because he pays child support and has substantial parenting time with her. He also notes that defendant claimed the child on her 2016 income tax return.
In opposition, defendant contends that "the I.R.S. regulations direct that the custodial parent is entitled to claim the child as a dependency deduction absent an agreement to the contrary or a Court order." With that said, a copy of these regulations—which are not particularly persuasive in any event—was not submitted.
It has been held that " ‘[w]here a noncustodial parent meets all or a substantial part of a child's financial needs, a court may determine that the noncustodial parent is entitled to declare the child as a dependent’ " ( Quinn v. Quinn , 61 AD3d 1067, 1070 [2009], quoting Pachomski v. Pachomski , 32 AD3d 1005, 1007 [2006] ; see Guarnier v. Guarnier , 155 AD2d 744, 746 [1989] ).
Here, it is undisputed that plaintiff pays child support and, further, provides health insurance coverage for the parties' child. To the extent that defendant claimed the child as a dependent on her 2016 income tax return, the Court finds that plaintiff is entitled to claim the child on his 2017 income tax return. The second aspect of plaintiff's motion is therefore granted.
Based upon the foregoing, plaintiff's motion is granted insofar as it seeks an Order permitting him to claim the parties' child as a dependent on his 2017 income tax return and the motion is otherwise denied without prejudice.
The only issues remaining for determination at this time are (1) maintenance; and (2) who is entitled to claim the child as a dependent for income tax purposes in 2018 and each year thereafter. To that end, the Court has executed an Order of Referral of maintenance to the Support Magistrate (see Family Court Act §§ 461 [c], 464 [a] ). A hearing has also been scheduled for February 8, 2018 at 10:00 A.M. at the Warren County Courthouse to determine who is entitled to claim the child as a dependent for income tax purposes in 2018 and each year thereafter.
In his motion papers, plaintiff indicated that he would be amenable to an arrangement whereby the parties alternate years, with defendant claiming the child as a dependent in 2018 and each even year thereafter and plaintiff then claiming her each odd year. In the event defendant is also amenable to this arrangement—which appears to be reasonable under the circumstances—please promptly advise the Court and the hearing will be removed from the calendar.
Therefore, having considered the Affidavit of ES with exhibits attached thereto, sworn to September 19, 2017, submitted in support of defendant's motion; Affidavit of David D. Bobick, Esq. with exhibits attached thereto, sworn to September 19, 2017, submitted in support of defendant's motion; Affidavit of TS with exhibits attached thereto, sworn to October 3, 2017, submitted in opposition to defendant's motion; Affidavit of TS with exhibits attached thereto, sworn to November 15, 2017, submitted in support of plaintiff's motion; Affidavit of Jessica Hugabone Vinson, Esq., sworn to November 17, 2017, submitted in support of plaintiff's motion; Affidavit of ES with exhibits attached thereto, sworn to November 27, 2017, submitted in opposition to plaintiff's motion; and Reply Affidavit of TS, sworn to December 8, 2017, submitted in further support of plaintiff's motion; and oral argument having been heard on December 13, 2017 with Jessica Hugabone Vinson, Esq. appearing on behalf of plaintiff and David D. Bobick, Esq. appearing on behalf of defendant, it is hereby
ORDERED that defendant's motion is denied without prejudice; and it is further
ORDERED that plaintiff's motion is granted to the extent that he is permitted to claim the parties' child as a dependent on his 2017 income tax return and the motion is otherwise denied without prejudice; and it is further
ORDERED that the parties are directed to appear for a hearing on February 8, 2018 at 10:00 A.M. at the Warren County Courthouse to determine who is entitled to claim the child as a dependent for income tax purposes in 2018 and each year thereafter; and it is further
ORDERED that any relief not specifically addressed has nonetheless been considered and is expressly denied.
The above constitutes the Decision and Order of this Court.
The original of this Decision and Order has been filed by the Court together with the submissions enumerated above. Counsel for plaintiff is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry in accordance with CPLR 5513.