Divorce and child custody case

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A.G. v L.G. 2015 NY Slip Op 51310(U) Decided on August 24, 2015 Supreme

Court, Essex County Muller, J. Published by New York State Law Reporting

Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 24, 2015

Supreme Court, Essex County

A.G., Plaintiff,


L.G., Defendant.


Whitson & Rogers, Elizabethtown (Debra A. Whitson of counsel), for


Anderson & Soloski, LLP, Plattsburgh (Tina J. Soloski of counsel), for


Robert J. Muller, J.

The parties were married on April 26, 2008 and have one child, L.M.G. Defendant vacated the marital residence in June 2015 and plaintiff then commenced this action for a no-fault divorce on July 16, 2015, simultaneously filing a motion by Order to Show Cause for the following pendente lite relief: (1) temporary maintenance; (2) sole physical and legal custody of the parties’ child; (3) temporary child support; (4) an Order directing defendant to maintain a life insurance policy naming plaintiff as irrevocable beneficiary; and (5) interim counsel fees. Defendant subsequently appeared, filing an answer and affirmation in opposition to the motion. Oral argument was heard on August 19, 2015, at which time the parties resolved the relief requested in items (1), (2) and (4) above.[FN1] Counsel shall submit a proposed Order on consent reflecting this resolution within ten (10) days of the date of this Decision and Order. Each remaining item of relief will be addressed in seriatim.

Temporary Child Support

Plaintiff is employed at Elizabethtown Community Hospital and defendant operates a dairy farm in the Town of Willsboro, Essex County. According to the parties’ 2014 tax return, plaintiff earns $20,887.00 per year and defendant earns $113,305.00 per year. Based upon these figures, plaintiff has calculated the presumptively correct amount of temporary child support to be $254.00 per week (see Domestic Relations Law § 240 [1-b] [c]).

Defendant opposes plaintiff’s request for temporary child support in this amount, contending as follows:

“My income is produced solely from the sale of milk generated on the farm. I sell milk exclusively to AgriMark, Inc., who pays me bi-weekly. “My income is not consistent. It depends exclusively upon milk production and the price that AgriMark, Inc., will pay for milk. My income as it appears on my 2014 state and federal tax returns is not reflective of my typical annual income. It also is not reflective of my anticipated earnings for 2015. In 2014, milk prices were significantly higher than they are for2015.”

In support of these contentions, defendant has submitted two monthly statements from AgriMark, Inc. — one dated July 18, 2014 and the other dated July 20, 2015 — which statements demonstrate a reduction in the price of milk from $24.7519 per hundred pounds in 2014 to $17.5105 per hundred pounds in 2015. Defendant has also submitted copies of the parties’ 2012 and 2013 tax returns which list his annual income as $17,802.00 and $54,653.00, respectively. Finally, defendant has submitted a detailed list of his income and expenses to date for 2015, projecting that his income for the year will be approximately $22,480.00. Defendant requests that the Court calculate temporary child support using plaintiff’s annual salary of $20,887.00 and his projected annual salary of $22,480.00.

In view of the evidence submitted by defendant in support of his contention that his annual income in 2014 does not reflect his typical annual income, as well as the evidence submitted in support of his projected 2015 income, the Court finds that an income of $22,480.00 should be used in calculating temporary child support. Accordingly, the presumptively correct amount of temporary child support from defendant to plaintiff is $63.69 per week:


Gross Income:$20,887.00$22,480.00

Spousal maintenance:+ $,3000.00— $3,000.00



Combined Parental Income:$43,367.00 ($23,887.00 + $19,480.00)

Combined Child Support:$7,372.39 ($43,367.00 x .17)


Percentage of Combined

Child Support:55.08%44.92%

[*2]Annual Child Support:$4,060.71$3,311.68

(55.08% of $7,372.39)(44.92% of $7,372.39)

Weekly Child Support:$78.09$63.69[FN2]

The Court therefore awards plaintiff temporary child support in the amount of $63.69 per week, with payments to begin on Monday, August 31, 2015 and continue on each Monday thereafter pending the issuance of an Order awarding permanent child support. By Order issued on even date herewith, the issue of permanent child support is referred to the Support Magistrate of the Family Court of Essex County for determination (see Family Court Act §§ 461 [c], 464 [a]).

Interim Counsel Fees

Plaintiff seeks interim counsel fees in the amount of $3,000.00, which amount she paid to her attorneys as an initial retainer. In support of this request, plaintiff has submitted a copy of the retainer agreement and an affidavit wherein she states that “[b]ecause of the complexity of the issues in this case, including the necessity [of] valu[ing] a farm business, [she] is requesting an interim award of counsel fees in the amount of $3,000[.00].” Notably, however, counsel for plaintiff has not submitted an affirmation of services in support of the request, nor has plaintiff submitted a statement of net worth.

Uniform Rules for Trial Courts (22 NYCRR) § 202.5 (k) (2) provides that no motion for counsel fees pendente lite “shall be heard unless the moving papers include a statement of net worth . . . .” Uniform Rules for Trial Courts (22 NYCRR) § 202.5 (k) (3) further provides that no such motion “shall be heard unless the moving papers also include the affidavit of the movant’s attorney stating the moneys, if any, received on account of such attorney’s fee from the movant or any other person on behalf of the movant, the hourly amount charged by the attorney, the amounts paid, or to be paid, to counsel and any experts, and any additional costs, disbursements or expenses, and the moneys such attorney has been promised by, or the agreement made with, the movant or other persons on behalf of the movant, concerning or in payment of the fee.

Based upon the foregoing, the Court finds that plaintiff is not entitled to the requested award of interim counsel fees.

Therefore, having considered the Affidavit of A.G. with exhibits attached thereto, sworn to July 15, 2015, submitted in support of the motion; Affidavit of L.G. with exhibits attached thereto, sworn to August 13, 2015, submitted in opposition to the motion; and oral argument having been heard on August 19, 2015 with Debra A. Whitson, Esq. appearing in support of the motion and Tina J. Soloski, Esq. appearing in opposition thereto, it is hereby

ORDERED that the aspect of plaintiff’s motion seeking temporary child support is granted to the extent that she is awarded temporary child support in the amount of $63.69 per [*3]week, with payments to begin on Monday, August 31, 2015 and continue on each Monday thereafter pending the issuance of an Order awarding permanent child support; and it is further

ORDERED that the issue of permanent child support is referred to the Support Magistrate of the Family Court of Essex County for determination by Order issued on even date herewith; and it is further

ORDERED that the aspect of plaintiff’s motion seeking interim counsel fees is denied; and it is further

ORDERED that counsel shall submit a proposed Order on consent reflecting the parties’ resolution of the remaining aspects of plaintiff’s motion within ten (10) days of the date of this Decision and Order.

The foregoing constitutes the Decision and Order of this Court.

The original of this Decision and Order is returned to counsel for plaintiff for filing and service with notice of entry. The above-referenced submissions have been filed by the Court.

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