WESTREICH v. WESTREICH

201348/2013

2014 NY Slip Op 51170(U)

DALE WESTREICH, Plaintiff, v. ANTHONY WESTREICH, Defendant.

Supreme Court, Nassau County

Decided August 1, 2014.


JEFFREY A. GOODSTEIN, J.

PRELIMINARY STATEMENT

In an attempt to organize the facts of this case and the various requests for relief from the parties, the Court will explain the financial background and current circumstances of the parties as alleged by them and then, explain the various requests for relief sought by each party. Throughout this decision, the Plaintiff may be referred to as "Wife" or "Mother" and the Defendant may be referred to as "Husband" or "Father".

Pursuant to a Stipulation dated July 15, 2014, (the "7/15/14 Stipulation") which was So-Ordered by the undersigned, the parties resolved Husband's motion regarding cancellation of the NetJets contract (motion sequence no.: 006) as well as the Sandra Novick Note, addressed further below.

The parties were married on May 1, 2001 and have two unemancipated boys, currently ages 11 and 10 (the "Children"). This matter was commenced on May 14, 2013 and on October 8, 2013 the parties executed a custody agreement ("Custody Agreement") wherein it was agreed that the parties would share parenting time and residential custody of the Children on a 50/50 basis. It is important to note that also within the Custody Agreement, the parties agreed that the "Father shall pendente lite pay all house and home related bills consistent with the pre-separation past practices of the parties...." Further, footnote 1 on page 6 of the Custody Agreement states:

The parties acknowledge that all references to Pendente Lite financial obligations of the Father in this Stipulation are without prejudice to either parties' rights or positions with respect to equitable distribution and spousal and child support and payment of household and employee costs in the final written financial agreement between the parties or a Court Order.The parties, during the marriage, amassed a substantial portfolio of real estate holdings as well as other significant assets. The Husband borrowed $3.6 million dollars in 2003 from his grandmother's trust (the "Helene Westreich Trust") and allegedly invested it in a residential building located 237 Park Avenue, New York, NY ("237 Park"). In addition, Husband alleges that he utilized some of the $5 million he made from an internet company he founded and later sold, prior to the marriage, and borrowed approximately $42 million from his father's trust (the "Stanley I. Westreich Revocable Trust"). With these funds, Husband purchased an interest in Max Capital Management Corporation ("Max Capital"), which, in 2005, established Monday Properties, which is the management company run by Husband which has interests in various real estate12. The $42 million dollars borrowed from the Stanley I. Westreich Revocable Trust was allegedly invested in the building located at 1440 Broadway, New York, NY ("1440 Broadway"). Monday Properties, throughout the marriage, had an interest in: a) 1440 Broadway (sold in 2013)3; b) 386 Park Avenue, NY, NY ("386 Park") — (sold in 2012); c) Coast Guard Building (assigned to lender in January 2014)4; d) Rosslyn Portfolio (various real estate in Arlington, Virginia)5; e) 230 Park Avenue, New York, NY ("230 Park"); f) 237 Park Avenue, New York, NY (sold in 2007).

Although invested in all of these properties, the Husband alleges that the financial stability of Monday Properties was severely damaged in the real estate market crash of 2008. Husband explains that in 2011, the value of 230 Park dropped 34%, was recapitalized and all remaining interests were lost, including those of Monday Properties. He claims that if Monday Properties were sold now, there would be no profit. In addition, 1440 Broadway was recapitalized which lowered Monday Properties' interest to 20%, but this building was sold in December 2013 allegedly based upon the decision of senior joint ventures. (The alleged contempt issues involving this sale is addressed in detail below). Now, Husband argues that Monday Properties has a non-equity interest in 230 Park and only an 11% equity interest in the Rosslyn Portfolio, but also manages these buildings. As of the date of Husband's affidavit, Monday Properties also managed the Coast Guard Building, but that was set to terminate on June 30, 2014.Prior to the alleged start of the financial troubles for Monday Properties, 237 Park was sold in 2007 and the Husband and Wife realized net proceeds of $73.5 million dollars. It is undisputed that with the net proceeds the parties repaid the loan to the Helene Westreich Trust.6 The Husband alleges that after repaying the loan, he also invested in a new commercial real estate venture involving 230 Park. Approximately $32 million dollars was deposited into a joint investment account (called the 237 Park Account) the parties paid $2.8 million dollars for income taxes, $10 million dollars to purchase vacation homes in Southampton, NY and Sea Island, GA and used another $7 million dollars to renovate the marital residence in Old Westbury. The Husband claims the parties only used funds from the 237 Park Account, funded through the liquidity event, for family living expenses and support, which he further alleges, was done with the agreement and understanding of the Wife. The parties agree that it was this, and other liquidity events, that provided them the opportunity to live their opulent lifestyle. In fact, on page 3 of the Wife's affidavit (motion sequence 004), she states as follows:

"Our lifestyle is not and has not been a lifestyle funded with regular earnings that are deposited systematically throughout a given year. Instead, it is predicated on ongoing liquidity events' such as the sale of substantial commercial real estate buildings, cash-out refinancing of other commercial properties, and other such significant liquidity events that largely are in my husband's control."

Nevertheless, the Wife, in her various affidavits submitted, argues that there was never an agreement to this effect and that the parties also utilized cash flow from Monday Properties.

It is safe to describe the parties' lifestyle, as one of extreme excess. Prior to purchasing their home in the Hamptons, they rented a home each summer costing approximately $100,000 dollars, until they purchased a home in 2008 for $4.262 million dollars, plus expending an additional $500,000 dollars in improvements. While in the Hamptons, they employed the same housekeepers as they had at the Old Westbury residence7. The Wife explains that they had fresh flowers delivered to all of their homes, rental and owned, from local florists costing approximately $500.00 per week; they catered parties up to $20,000 each; birthday parties costing approximately $3,000; they spent $30,000 a month while in the Hamptons for entertaining, gifting and food supplies; dinners with family and friends were always paid by the parties costing approximately $1,500 per dinner; dinners at home were catered at a cost of $2,000 per month; the Children took private tennis lessons costing approximately $10,000 over the course of 4 years; they took extravagant vacations all across the world where they utilized limousines and $3,000 a night hotel rooms; they had a NetJets contract costing over $500,000 a year just to maintain the contract, and an additional $2,500 — $5,000 per hour when utilizing the service; the parties always flew by private jet and traveled extensively with friends and family; Husband played golf at only the most exclusive golf resorts and clubs, many of which they are members89, and always paid for their guests; the parties made various charitable donations in the amounts of $150,000 to Long Island Jewish Medical Center, $75,000 for Women's Health and $25,000 to Mt. Sinai Hospital, to name a few; they attended Prince Charles' 60th birthday party at Buckingham Palace; spent over $100,000 a month for clothing, and holiday vacations cost $40,000-$45,000 each. There was no limitation to the parties' spending.

In addition, all three residences have expensive items such as art work, collectibles, rugs and lighting. In fact, the Wife alleges that the parties' spent approximately $7 million dollars in renovations and collectibles combined on the three residences. The parties' Marital Residence, in Old Westbury is a 23,000 square foot brick Georgian Manor, sitting on 9.56 acres with 9 fireplaces, 9 bathrooms, 8 bedrooms and a 70 yard golf hole. She further alleges that the parties spent approximately $20,000 a year on floral arrangements10, 11, $50,000 per year for watches for the Husband and, in total, the Wife has jewelry appraised at over $1 million. In addition, the parties' have assets of $1 million in pure gold and have purchased and sold stock in Apple and Google and also purchased bonds. In addition, the Wife alleges that the parties own/lease the following automobiles:

a) 2012 Ferrari which cost $360,000, paid for in cash; b) 2012 Porsche Targa which cost $131,000, paid for in cash; c) 2011 Cadillac Escalade which cost $82,000, paid for in cash; d) 2012 Range Rover which cost $90,000, paid for in cash; e) 2014 Mercedes Benz (leased by Wife — $1,400 per month); f) 2014 Cadillac Escalade which cost $90,000.

The specific requests made by the parties in their various motions shall be addressed below referring partially to the facts set forth above, and the additional facts provided in those particular sections pertaining to those issues.

MOTION SEQUENCE 003

The Husband filed this order to show cause seeking an order a) directing the Wife to return $2,053,976.35 removed from the joint account on April 12, 2013 to be utilized for the parties' living expenses; b) directing the Wife to provide a detailed accounting of $3,013,819.43 removed from her individual JP Morgan Chase account on April 15, 201312; c) directing the Wife to endorse and deliver to Husband all funds due and owing to the parties by Sandra Novick13 pursuant to a Note dated February 12, 2010 so the funds can be returned to the joint account and utilized for living expenses; and d) providing that those funds be placed back in the joint 237 Account and utilized solely by the Husband for the family's living expenses.

The Wife opposes each and every request and cross moved for Pendente Lite relief.

Approximately one year prior to commencement, the Husband, at the Wife's request, transferred $1 million dollars from the 237 Park Account into the Wife's name alone14. Husband argues that just 32 days before the commencement of this action the Wife removed more than $2 million dollars from the 237 Park Account. Wife had over $3 million dollars in her control and possession, leaving $1.5 million dollars for the Husband to pay all of the family expenses from the 237 Park Account. Husband claims that the money has been exhausted which forced him to liquidate bonds purchased with 237 Park monies to fund the family expenses during this litigation. Wife claims that the $2,053,976.35 was only 40% of the account, and the Husband removed the remaining 60% in the account. The Husband claims that he has utilized the funds he removed to continue to support the family. The Wife's accountant provided an accounting of her use of those funds, and as of the date of said accounting the Wife had utilized, in pertinent parts: $614,000 for matrimonial counsel fees; $97,000 in accounting fees; $14,000 in counsel fees regarding estate and gifting issues; $35,000 for real estate appraisers; $6,300 for her psychiatrist; and $62,000 to reimburse her father for air travel to Minnesota and a private plane to and from Georgia. In essence, the Wife claims that she has been utilizing her advancement of equitable distribution to fund this litigation. The Husband, on the other hand, argues that since the parties always paid living expenses based upon liquidation events, this money should be returned to him for use on the family expenses.

The 7/15/14 Stipulation executed by the parties and so-ordered by this Court resolved the Husband's request regarding the Sandra Novick Note. Further, the Wife, in her opposition, provided the accounting requested by the Husband, so that issue is now moot. For the reasons set forth in detail in the analysis of the Wife's request for pendente lite support (motion sequence 004), the Husband's request for an order directing the Wife to return and depositing $2,053,976.35 of the funds removed from the parties' 237 Park Account to be utilized solely by the Husband for family living expenses is hereby DENIED.

MOTION SEQUENCE 004

Here, the Wife cross moves for an order, 1) directing the Husband to pay $236,138 per month in unallocated spousal and child support15; 2) directing Husband to pay for every house from his earnings; 3) directing that all club memberships be paid from the Husband's earnings and to order a schedule of who gets to use them; 4) directing the Husband to pay all insurances from his earnings; 5) directing the Husband to pay $500,000 in counsel fees16; 6) directing Husband to pay $200,000 for the Wife's forensic accountants17; 7) directing the Husband to pay $115,000 for real estate appraisers utilized by the Wife; 8) directing the Husband to reimburse the Wife for counsel fees already paid ($651,000), and expert fees already paid ($174,800 for accountants and $35,0000 for real estate appraisers); 9) directing the Husband to provide an accounting of the $3,000,000 (three million dollars) in cash he removed from the parties' joint account; 10) directing the Husband to provide the discovery requested, appear for his noticed examination before trial, and if he fails to provide the requested discovery, an order of preclusion, that the issues are resolved in the Wife's favor and to strike the Husband's answer; 11) directing that the parties' equally divide the $529,000 check from Sandra Novack or to place it into an escrow account18.

The Husband opposes the Wife's motion but offers to continue to pay certain items if his initial Order to Show Cause seeking the return of the money removed by the Wife at the commencement of this action were granted.

As set forth in detail above, the Wife argues, and it is undisputed, that the parties enjoyed a very lavish lifestyle. The Wife further argues that her pendente lite request should be granted based upon the pre-separation standard of living, as outlined above. Interestingly, although the Wife acknowledges that the parties did not live off yearly earnings, but instead, paid their living expenses through liquidation events, she requests that the Husband maintain the status quo during the course of this litigation from his earnings19. The Husband argues, as set forth in his request in Motion Sequence 003, that the Wife return the funds removed from the 237 Park Account, which was deposited there from the liquidation event of the sale of 237 Park in 2007, and he will gladly continue to pay all of the expenses and maintain the status quo, which he alleges, is just that, paying for the living expenses through the liquidation event. For the Wife to now ask the Husband to maintain the status quo from his earnings, he alleges is exactly the opposite, and not the status quo of the parties.

The Wife further argues that the Husband is not providing sufficient spousal and child support to have the "lifestyle commensurate with their pre-separation lifestyle." She argues that she has been forced to utilize her equitable distribution. She complains that the Husband has capped her American Express and JP Morgan credit cards at $10,000 each, per month, and on one occasion, a card was rejected. She further complains that the credit cards provided for and utilized by the nanny and the groundsman/driver have been capped at $2,500 each per month.20 The Wife alleges that the parties enjoyed an approximate $2.8 million dollar yearly lifestyle, not inclusive of the costs paid through the Husband's businesses. She contends that the Husband is only paying for the three (3) properties, basic compensation for the driver and nanny when with the Wife, refuses to pay for overtime, but is maintaining health care, life insurance, car insurance, and the costs of the Wife's new Mercedes. The Husband has been maintaining every carrying charge of the three residences and every expense for the Children. She argues, however, that the cap imposed by the Husband is not consistent with the status quo of their pre-separation standard of living. Her affidavit references, aside from the spending outlined above, the names of individuals who this Court can gather, are among the elite individuals in the business world as their regular dinner companions. She also argues that the Husband's lifestyle has not changed, yet he has imposed restrictions on her spending. She contends that her pendente lite spending is merely commensurate with their lavish lifestyle. Wife argues that the $96,000 dollars per month she is requesting in direct child and spousal support, in addition to the $136,000 dollars of maintenance and carrying charges for the residences and insurances, based upon her Statement of Net Worth is to be utilized, in pertinent parts, for the following: (monthly)

$1,900 — groceries

$1,400 — home entertainment

$2,100 — dining out

$16,500 — clothes for Wife

$594 — dry cleaning and tailoring

$7,000 — household maintenance repairs (Old Westbury)

$1,274 — home accessories, furnishings & decor (Old Westbury)

$2,000 — cleaning and household supplies (Old Westbury)

$4,288 — maintenance and repairs (NYC apartment)

$1,076 — furnishing and decor (NYC apartment)

$5,819 — Wife's 3 cars (washes, detailing, gas, parking and violations).21

$2,000 — airfare

$8,200 — hotels

$1,192 — other vacation related expenses22

$710 — theatrical productions

$1,050 — team sports (biking, golf, skiing, surfing)

$1,189 — Health clubs

$1,255 — sporting goods

$774 — massages

$872 — gifts

$3,094 — charitable contributions

$1,614 — fur coats ($19,368 yearly expense)

$16,211 — jewelry ($194,532 yearly expense)

$8,236 — art ($98,832 yearly expense)

With regard to earnings, although the Wife acknowledges that their lavish lifestyle was mainly funded by liquidation events and not typical yearly earnings, she alleges, as does her accountant, that the parties also utilized cash flow from Monday Properties through rent, parking fees and refinancing of buildings. With these funds, the parties paid expenses and purchased stocks and bonds. She alleges that the Husband has asked her to refinance their debt free marital residence, sell stocks and move bonds into the names of the Children, all, she alleges, as an attempt to financially strangle her. She also argues that the Husband earns $6 million dollars a year from Monday Properties.

The Husband admits that his 2012 tax return shows $6 million dollars in earnings, however, he further explains that said income is sheltered by $22 million dollars of losses from prior years. He, and his accountant, argue that such an event is not recurring and is merely a snapshot of his earnings. Husband further argues that his net cash distribution from business, not including the sale of 1440 Broadway (addressed in detail below) will be $1.27 million dollars and he no longer has any tax loss carry forwards available. He further argues that based upon the status of Monday Properties, there are no more sales or investment income coming any time soon. Wife counters that the lack of unpaid bills is because she utilized her advancement of equitable distribution to pay what the Husband refused to pay. She lists as examples, the following: the salary for Wife's housekeepers; dues at Old Westbury Golf and Country Club (their names were about to be posted in the locker room as non payers), landscaping, plumbing, pool-service and dentist bills. He believes, and contends, that his 2014 income, after taxes, at best, will be $750,000. He further contends that only legitimate business expenses are run through Monday Properties and that he has no control over liquidity events as Monday Properties now only has minority interests remaining.

In opposition to the Wife's motion, he admits that the parties "spent too freely and lived too well." He further argues that the Wife failed to provide a single unpaid bill and argues that a set schedule to utilize their various club memberships is unnecessary as she has never been denied access to any of the clubs. He also attacks the Wife's claim that his pendente lite spending remained the same as their pre-separation standard of living. Husband, after the execution of the Custody Agreement, which awarded the Wife exclusive use and occupancy of the marital residence, pendente lite, purchased a home in Roslyn Heights, for approximately $2.1 million dollars. There is currently a mortgage on that residence for $1.458 million dollars. In addition, the Husband references, as quoted above, to the fact that the Custody Agreement set forth pendente lite financial obligations for the parties. He claims that the Wife failed to seek modification or enforcement of the financial portion of the Custody Agreement, yet she completely failed to mention it, failed to provide a single unpaid bill, until her reply, and in fact, highlights the fact that her own accounting shows her lack of need. The Wife however, argues that the Custody Agreement does not provide for basic support for the Children or maintenance for the Wife, nor does it provide for payment of the Children's add-ons. He further points out that she hasn't used any of the money she removed from the joint account for any of her own living expenses and only used it for litigation purposes, (also as set forth in detail above and addressed further below). In essence, the Husband claims that the Wife's request should be denied outright as she has been, and is being, adequately supported. In addition, he argues that her request for any child support is meritless as, currently, the parties share an equal parenting time arrangement with the Children pursuant to the Custody Agreement and he is paying for all of their needs and housing, not including the new home Husband recently purchased. Husband further argues that the lifestyle of the Children has not been impacted in any way.

An award of support Pendente Lite is designed to maintain the status quo (Hills v. Hills, 281 A.D.2d 584 [1st Dept. 1992]) and provide for the reasonable needs of the parties pending the determination of the litigation. (Campion v. Campion, 264 A.D.2d 705 [2d Dept. 1999]; Rossman v. Rossman, 91 A.D.2d 1036 [2d Dept. 1983]). It is meant to tide over the more needy party, not to determine the correct ultimate amount of support. (See Jordan v. Jordan, 2 A.D.3d 687 [2d Dept. 2003]). It is not the purpose of a Pendente Lite order to permit the custodial parent and the child to merely "subsist" pending trial. (See Salerno v. Salerno, 142 AD2D 670 [2d Dept. 1988]).

The formula to determine temporary spousal maintenance that is outlined in Domestic Relations Law Sec. 236(B)(5-a)(c) is intended to cover all of a payee spouse's basic living expenses, including housing costs, the costs of food and clothing, and other usual expenses. (Khaira v. Khaira, 93 A.D.3d 194, 196 [1st Dept. 2012]. It is axiomatic that the purpose of temporary maintenance is not to finally determine the property rights of the parties, but to assure that the reasonable needs of a dependent spouse are met during the pendency of a divorce proceeding. (Zahr v. Zahr, 149 A.D.2d 504, 505 [2d Dept. 1989]). While the prior standard of living is a relevant factor in reaching a temporary award, the movant's actual financial need is also a significant factor. (Aron v. Aron, 216 A.D.2d 98 [1st Dept. 1995]). The burden is on the spouse seeking the award to establish the need for it, and the income and assets of the spouse making the application are to be considered (Van Ess v. Van Ess, 100 A.D.2d 848, 849 [2d Dept. 1984]; [internal citations omitted]). Courts have consistently recognized that temporary support awards "should reflect an accommodation between the reasonable needs of the moving spouse and the financial ability of the other spouse with due regard for the parties' pre-separation standard of living." (Fini v. Fini, 107 A.D.3d 758 [2d Dept. 2013]. See also Abramson v. Gavares, 109 A.D.3d 849 (2d Dept. 2013); Bagner v. Bagner, 207 A.D.2d 367 [2d Dept. 1994]). In Vahey v. Vahey, 940 N.Y.S.2d 824 (Sup. Ct. Nassau Co. 2012, J. Palmieri), the Court opined that "Here, there is no demonstration that the reasonable needs of the movant or of the parties' children are not being met, as all continue to reside together in the marital residence, and it is apparent that the bills are being paid."

Additionally, when a court is unable to perform the calculation established by DRL §236 (B)(5-a)(c) as a result of being "presented with insufficient evidence to determine gross income, the court shall order the temporary maintenance award based upon the needs of the payee or the standard of living of the parties prior to commencement of the divorce action, whichever is greater" (DRL §236(B)(5-a)(g)]; Davydova v. Sasonov, 109 A.D.3d 955 [2d Dept. 2013].

Pendente Lite maintenance is "designed to insure that a needy spouse is provided with funds for his or her support and reasonable needs pending trial." (Ferdinand v. Ferdinand, 215 A.D.2d 350 (2d Dept. 1995). In order to achieve this purpose, a court must make the financial need of the spouse requesting pendente lite maintenance its primary consideration (Id; See also, McCarthy v. McCarthy, 156 A.D.2d 346 [2d Dept. 1989]). In Ferdinand, the court found that certain plaintiff's monthly expenses were excessive or unnecessary, and therefore, the award of pendente lite maintenance was excessive. (Id.)

The remedy for an award of temporary maintenance claimed to be unsatisfactory is a speedy trial at which a more detailed examination of the situation of the parties may be made. (Rossman v. Rossman, 91 A.D.2d 1036 (2d Dept. 1983).

In Vistocco v. Jardine, the appellate court ruled that in light of the evidence that the plaintiff's income exceeded $500,000 and the gross disparity between the plaintiff's income and the defendant's income, the Supreme Court properly awarded additional support in the form of a directive to the plaintiff to pay the mortgage and taxes on the marital residence. (986 N.Y.S.2d 578 [2d Dept. 2014]).

Further, it cannot be disputed that courts favor voluntary arrangements for pendente lite support. (See Brody v. Brody, 88 A.D.3d 757 [2d Dept. 2011], citing Shanon v. Patterson, 294 A.D.2d 485 (2d Dept. 2002); Blink v. Blink, 55 A.D.3d 1244 [4th Dept. 2008]). Indeed, it is well settled that "in the absence of any proof that a party has failed to adequately provide for the needs of his family, there is no need for an award of temporary maintenance and child support." (Hite v. Hite, 89 A.D.2d 577 [2d Dept. 1982]). Where one spouse has been voluntarily supporting the party who seeks an award of pendente lite support, no award should be made. (See Coons v. Coons, 161 A.D.2d 924 [3d Dept. 1990]).

For purposes of calculating income under the temporary maintenance statute, annual income is defined as gross income, less FICA and New York City or Yonkers Income Taxes. (DRL §240 (1-b)(b)(5)). Here, the Wife is requesting $97,063 per month be paid directly to her to disburse for herself and the items listed in her Statement of Net Worth (many of which are listed above); $139,075 per month to third parties for items listed on her statement of net worth to be paid directly by the Husband for a total of $2,833,659 per year. Although the Husband's 2012 tax return evidences an income of $6 million dollars, the Wife argues that the Husband's "cash flow/income is not readily ascertainable from tax returns since for a real estate entrepreneur with real estate related losses and depreciation, the adjusted gross income' line of the income tax returns is functionally irrelevant for purposes of ascertaining annual cash flow/income". Wife alleges that for at least the past five years the parties have not been required to pay income taxes despite their $6 million dollar annual cash flow/income.

Domestic Relations Law §236 [B][5][c] establishes a formula and guidelines for calculating presumptive amounts of temporary spousal maintenance in matrimonial actions. Where a payor's income does not exceed the statutory "income cap" of $543,000.00 the presumptive award is the lesser of 30% of the payor's income minus 20% of the payor's income or 40% of the payor's income and the payee's income, minus the payee's income.

This Court shall order this amount, the presumptive amount of temporary maintenance, unless the Court finds it to be unjust or inappropriate. (DRL §236(5-a)(e)(1)). In that case, the Court may adjust the presumptive maintenance award considering the nineteen factors, as well as "any other factor which the Court shall expressly find to be just and proper." (DRL §236B(5-a)(c)(2)(a)). The aforementioned nineteen factors are as follows:

the length of the marriage; the substantial differences in the incomes of the parties; the standard of living of the parties established during the marriage; 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 wasteful dissipation of marital property; the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; the existence and duration of a pre-marital joint household or a pre-divorce separate household;

Acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence;

The availability and cost of medical insurance for the parties;

The care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party's earning capacity or ability to obtain meaningful employment;

The inability of one party to obtain meaningful employment due to age or absence from the workforce;

The need to pay exceptional additional expenses for the child or children, including, but not limited to, schooling, daycare and medical treatment;

The tax consequences to each party;

Marital property subject to distribution pursuant to subdivision 5 of this part;

The reduced or lost earning capacity of the party seeking temporary maintenance as a result of having foregone or delayed education, training, employment or career opportunities during the marriage;

The contributions and services of the party seeking temporary maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party; and

Any other factor which the Court shall expressly find to be just and proper. Where the court does in fact adjust the award, it must articulate the factors it considered and the reasons for the adjustments.

Based upon the foregoing, the Court calculated temporary maintenance based upon the statutory income cap. The payor's percentage ($543,000.00 × 30% = $162,900.00) minus the payee's percentage ($0.00 × 20% = $0.00) = $162,900.00. The Court then compared this resulting number with the following: payor's income ($543,000.00) plus payee's income ($0.00), which equals $543,000.00 × 40%, which equals $217,200.00. Next, the Court subtracted one hundred percent (100%) of the payee's income ($0.00) from $217,200.00), which equals $217,200.00. the lesser of these amounts if the "presumptive award" pursuant to statute, which is $162,900.00 per year ($13,575.00 per month).

The Court is aware of the immense disparity between the parties' incomes, and is also cognizant of the parties' pre-separation lifestyle. In addition, the Court has considered the transfer of over $2 million dollars made by the Wife from the parties' 237 Park Account. The money removed by the Wife from the 237 Park Account is an advance of the Wife's equitable distribution, regardless of the fact that the parties' both admit that they used the funds in this account, derived from the liquidation event of the sale of 237 Park Avenue, to fund their lifestyle. This is why, as addressed above, the Husband's motion seeking the return of said funds from the Wife was DENIED. However, in the same vein, the Court has given great weight to the fact that the Wife has been utilizing this money, and her additional million dollars which was transferred into her own name a year prior to commencement to fund this litigation.

The Husband, with the possibility of denial of his motion, consented to pay the following expenses, in amounts consistent with prior practice, without prejudice and on a pendente lite basis, which this Court, based upon said consent is hereby ordering. Accordingly, it is hereby

ORDERED, that the Husband shall pay, with respect to the former marital residence located in Old Westbury, New York, the i) real estate taxes and homeowner's insurance; ii) gas, electric, water, cable/internet, telephone and alarm; iii) gardening/landscaping, snow removal, sanitation, and extermination; iv) reasonable and necessary maintenance fees for sprinkler system, tennis court, pool; and v) necessary repairs, either agreed to by the parties, or as ordered by this Court; and it is further

ORDERED, that the Husband shall pay, with respect to the parties' residence in Southampton, NY, the i) real estate taxes and homeowner's insurance; ii) gas, electric, water, cable/internet, telephone, and alarm; iii) gardening/landscaping and sanitation; iv) reasonable and necessary maintenance fees for the sprinkler system and pool; and v) necessary repairs, either agreed to by the parties or as ordered by this Court; and it is further

ORDERED, that the Husband shall pay, with respect to the parties' residence in Sea Island, Georgia, the i) real estate taxes, required assessment and HOA type charges, and homeowner's insurance; and ii) gas, electric, water, cable/internet, telephone, and alarm23; and it is further

ORDERED, that the Husband shall continue to pay for the household help in accordance with the terms of the Custody Agreement; and it is further

ORDERED, that the Husband shall continue to pay the Umbrella, Automotive, Existing Life and Medical Insurance policies for the family; and it is further

ORDERED, that the Husband shall pay 100% of the reasonable and necessary pharmacy and physician co-pays incurred by the family, provided that in-network covered providers are used, unless under the previous care of an out-of-network provider (i.e., therapist); and it is further

ORDERED, that the Husband shall pay 100% for the Children's summer camp, extracurricular activities, and educational expenses as they are consented to by both the Husband and the Wife.

These ordered expenses to be made by the Husband cost approximately $136,000 per month on behalf of the Wife and the Children. Based upon these concessions, the Husband argues that he should not be ordered to pay any direct support to the Wife as she can utilize the funds remaining from the over $2 million dollars she removed from the 237 Park Account. This Court disagrees. Although these expenses are being paid by the Husband, the parties enjoyed a lavish pre-separation lifestyle.

The issue now to be addressed is the Wife's request of approximately $97,000 per month in direct spousal and child support. As is clear from the foregoing facts, the Court is cognizant of the fact that the parties lived a lifestyle most people can hardly fathom. The Court is also aware that the parties' pre-separation standard of living is a factor to be considered in determining temporary maintenance and maintaining the status quo of the parties, pendente lite. The Wife, in her motion papers, and through her counsel at many conferences with this Court, continues to explain the lavish lifestyle and the fact that the status quo must be maintained during this litigation.

It is this Court's belief that the legislative intent of making the status quo a factor in determining temporary maintenance was not meant for a case of this magnitude. This Court finds it difficult to believe that the legislature intended that the status quo for temporary maintenance purposes was for items such as $2,000 a month for household furnishings; $2,000 a month for airfare and $8,000 a month for hotels; $774 a month for massages; $16,000 a month for jewelry; $8,236 for art; $20,000 for a dinner party; $4,166 a month in floral arrangements. It is this Court's belief that the status quo is meant to maintain the comforts of the lifestyle to which one has become accustomed, however, there must be a limit to such comforts. The award directed below does not require the Wife to return her 2014 Mercedes, costing a lease payment of $1,400 per month, for a new, lesser valued vehicle costing only $200 per month. The award directed below does not require the Wife to move from Old Westbury, living in a 9.56 acre Georgian Manor to 3 bedroom apartment in a less affluent neighborhood. It is this Court's view that the award directed below does not limit the Wife's reasonable needs in any regard.

Accordingly, based upon the foregoing facts, law and factors considered, it is hereby ORDERED that the Husband shall provide the Wife with temporary maintenance in the amount of $30,000.00 per month in direct spousal support. As the Husband has previously capped the Wife's credit cards are $10,000 each, the Husband is hereby ORDERED to pay the Wife's JP Morgan and American Express credit card in a timely manner, each month at $10,000.00 each per month. In addition, the Husband shall provide the Wife, on the first of each month with an additional $10,000.00. This additional $10,000.00 shall be provided to the Wife monthly in any manner agreed to by the parties, but if an agreement is not reached within ten (10) business days of the date of this order, then said $10,000.00 shall be provided to Wife through a deposit into the bank account of her choosing. This award is retroactive to the date of filing of the Wife's motion which is dated February 13, 2014 (See DRL §236B(6); Dooley v. Dooley, 128 A.D.2d 669 [2d Dept. 1987]). Retroactive sums due by reason of this Pendente Lite temporary maintenance award shall be paid at the rate of $5,000.00 per month in addition to the sums awarded until all arrears have been satisfied, further Order of a Court of competent jurisdiction or further agreement of the parties. The Husband may take a credit for sums voluntarily paid for actual maintenance after the filing of the Wife's Notice of Cross Motion and prior to the date of this Decision for which he has cancelled checks or other similar proof of payment. The first payment hereunder shall be made within fifteen (15) days of the date of this Decision and then monthly thereafter, with payment to be made by the first day of each month.

With regard to child support, it is important to note that currently, the parties share, on a 50/50 basis, parenting time with the Children24. In addition, as has been the custom, and as ordered herein, the Husband has been making all payments for all items for the Children. The Court, in fashioning the maintenance award set forth above, considered the Wife's child support request. Child support is paid to the residential custodial parent. This Court considered and was wary of awarding a "double shelter allowance" by improperly providing support for the housing of both the payee parent and the child when they live under the same roof. (Harris v. Harris, 97 A.D.3d 534 [2d Dept. 2012]). However, here, the parties share custody 50/50 and since the Husband is making all payments for the Children, the Wife's request for child support is hereby DENIED. Any items the Wife believes she needs to purchase for the Children can be paid out of the $30,000 a month maintenance award, plus the $5,000 a month retroactivity for arrears, ordered herein, or the over $2 million dollars in advanced equitable distribution she currently controls.

With regard to the Wife's other requests, it is hereby ORDERED that the Husband pay and maintain all club memberships to which the parties are currently members. However, the Court will not entertain the Wife's request for a schedule of who gets to utilize which club and when. The parties are adults and it has not been presented to the Court that either party has ever been denied access to a club when they wanted to be there. Accordingly, that portion of the Wife's request is DENIED.

DISCOVERY

The Wife also requests that this Court direct the Husband to provide the discovery requested, appear for his noticed examination before trial, and if he fails to provide the requested discovery, an order of preclusion, and deeming the issues resolved in the Wife's favor and to strike the Husband's answer. She claims that Husband has withheld, to date, production of his personal financial records, including documentation of his use of his personal credit cards as well as of his business credit cards and documentation of the payments made on his, or the family's, behalf through his businesses.

The Husband, in opposition argues that at the execution of his affidavit, he has provided the Wife with 15,000 pages of financial documents, comprising a substantial portion of the requested items in a continuing, "rolling" effort to comply with every demand. The "rolling" production for the vast documents was agreed upon between counsel in the early stages of this litigation. Husband further argues that Wife's request that Husband be "directed to appear and attend his deposition pursuant to plaintiff's Notice of Deposition, dated October 14, 2013" is disingenuous in light of the fact that Wife's counsel adjourned the deposition, and at the execution of his affidavit, failed to reschedule same.

When determining whether to impose penalties pursuant to CPLR §3126 (such as striking affirmative defenses and/or precluding the introduction of evidence at trial), courts exercise a "general policy favoring the resolution of actions on their merits." (Kinge v. State, 302 A.D.2d 667 [3d Dept. 2003]). "Before a court may impose the drastic remedy of preclusion for disclosure violations, it must determine that the offending party's lack of cooperation with disclosure was willful, deliberate and contumacious." (Tung Wa Ma v. NY City Transit Auth., 113 A.D.3d 839 [2d Dept. 2014]). Here, Wife has failed to establish that she is entitled to the discovery sanctions requested in her motion at this time. The parties are warned, however, that if discovery, as currently being exchanged through their respective counsel and accountants through the uploading and downloading of documents through a portal on a cloud is not conducted more quickly, this Court will consider the appointment of a Discovery Referee to oversee the exchanging of discovery documents on a weekly basis. Accordingly, Wife's request regarding discovery is DENIED, without prejudice.COUNSEL FEES

The Wife seeks an award of counsel fees in the amount of $850,00025; $300,000 for the Wife's forensic accountants26; $115,000 for real estate appraisers utilized by the Wife and an order directing the Husband to reimburse the Wife for counsel fees already paid at the time of her application ($651,000), and expert fees already paid ($174,800 for accountants and $35,000 for real estate appraisers). In total, the Wife is seeking an order to have the Husband pay $2,075,800 in fees.

DRL §237 provides that, in a matrimonial proceeding, the Court may exercise its discretion to direct either spouse to pay the counsel fees of the other spouse. In exercising its discretion, the Court shall consider the circumstances of the case. The statute further provides that, "there is a rebuttable presumption that counsel fees shall be awarded to the less monied spouse." Additionally, "an award of interim counsel fees ensures that the non-monied spouse will be able to litigate the action, and do so on equal footing with the monied spouse." (See Prichep v. Prichep, 52 A.D.3d 61 [2d Dept. 2008]). Where there is no serious dispute that one of the party's financial resources far exceed those of the other party, the latter should not be expected to exhaust all of the finite resources available to him or her in order to pay his or her attorney(s). (See Prichep v. Prichep, supra.).

Awards of interim counsel fees to a non-monied spouse are warranted where there is a significant disparity in the financial circumstances of the parties in order to avoid compromising the ability of the non-monied spouse to adequately litigate the case (see Penavic v. Penavic, 60 A.D.3d 1026 [2d Dept. 2009]).

However, the statutory "presumption" of interim counsel fees has been criticized for allowing the non-monied spouses to gain an unfair advantage over supposedly "monied" spouses. While "[a wife] should not have to deplete her assets in order to have legal representation comparable to that of [her husband]" (Lennox v. Weberman, 109 A.D.3d 703 [1st Dept. 2013]), the Court must avoid awards of interim counsel fees that could result in non-monied spouses having every incentive to engage in costly litigation, regardless of necessity, because they are shielded from responsibility for the substantial majority of litigation expenses. (See Sykes v. Sykes, 973 N.Y.S.2d 908 [Sup. Ct. NY Co. 2013]). In the instant proceeding, it is undisputed that the Husband is the monied spouse.

Counsel for both parties are among the elite in their field. However, the situation here seems not to be that the Wife needs an award to be on an equal footing with the Husband. Needless to say, the amount billed and expended for this litigation is astronomical. The Court has conducted a close evaluation of the billing statements submitted by Wife's counsel. Said evaluation shows that there have been 6 (six) firm employees billing the Wife with many of the entries redacted from the billing records. Also, many of the time entries outlining the work performed are vague. There are statements such as "busy throughout the day" and "all through the day". Further, there are a large majority of billable hours which are identical for multiple attorneys involved in this matter for the Wife. In fact, correspondence between counsel are often signed by two attorneys in Wife's counsels' firm, including the affirmations submitted by Wife's counsel. The Husband alleges that he has spent less than 40% of the Wife's counsel fees. However, the Court is aware that the Husband is the party with all the documents and knowledge and the Wife is the party who needs to review every document to obtain a better understanding of the marital assets. It is unjust and inappropriate for this Court to award the full counsel fees requested based upon these issues, as well as the support awarded herein, and the money in the exclusive possession and control of the Wife.

With regard to expert fees, the Court understands the Wife's needs for a forensic accountant to review and attempt to evaluate the true value of the parties' vast assets and the real estate appraisers. However, the only way for the Court to have a better understanding of the true extent of the parties' finances will be at the conclusion of a trial as the affidavits submitted by the parties' respective accountants, are, as expected, in direct contravention of each other.

Considering the circumstances of this case and all of the foregoing factors set forth above, the Court finds that an award of interim counsel fees in the sum of $250,000.00 is appropriate. Wife's application for counsel fees isGRANTED in this sum, and it is therefore ORDERED, that the Husband shall pay to Wife's counsel a total of $ 50,000.00 within thirty days of the filing of this Order with Notice of Entry, and $50,000.00 every thirty days thereafter until the $250,000.00 is paid in full. Should the Husband fail to pay the Wife's counsel as ordered herein, the Wife's counsel may file an affidavit of non-compliance with the Clerk of the County who shall enter a judgment in favor of Wife's counsel, in the sum still owed, if any, after the date the final payment is due with interest calculated at nine percent (9%) per annum.

In addition, the Husband is hereby ORDERED to pay the Wife, as and for her forensic accountant fees, $50,000.00 within 45 days of the filing of this Order with Notice of Entry. Should the Husband fail to pay the Wife as ordered herein, the Wife may file an affidavit of non-compliance with the Clerk of the County who shall enter a judgment in favor of Wife's counsel, in the sum still owed, if any, after the date the final payment is due with interest calculated at nine percent (9%) per annum. It is further

ORDERED, that the Husband shall pay to the Wife, as and for her real estate appraisal fees, the sum of $40,000.00 within 45 days of the filing of this Order with Notice of Entry. Should the Husband fail to pay the Wife as ordered herein, the Wife may file an affidavit of non-compliance with the Clerk of the County who shall enter a judgment in favor of Wife's counsel, in the sum still owed, if any, after the date the final payment is due with interest calculated at nine percent (9%) per annum.

All payments of counsel fees and other expert fees shall be subject to reallocation at the conclusion of the trial. As the Wife continues to utilize portions of the over $2 million dollars she removed from the 237 Park Account, the Court is confident that at the conclusion of the trial, any reallocation awarded will be paid, if need be, and if warranted, through an additional distribution from the Husband's share of the parties' assets. This award of counsel and expert fees is without prejudice to future requests for additional fees from the Wife.

MOTION SEQUENCE 005

Here, the Wife brought an Order to Show Cause seeking various forms of discovery, including trust documents from the Husband's father's revocable trust to which he is a beneficiary, the appointment of receivers and contempt against the Husband for his part in the sale of 1440 Broadway, the payment of $30 million dollars back to his father's revocable trust and violation of the automatic orders based upon said sale and payment of money without notifying the Wife or the Court of same. Various immediate relief was requested in this Order to Show Cause which warranted this Court issuing the Short Form Order regarding the restraints on April 15, 2014 which limited the spending of the parties without prior approval of the other.

The Husband opposes this motion in its entirety.

CONTEMPT

Specifically, the Wife seeks an order adjudging the Husband in contempt of court for his willful violation of the automatic order in effect pursuant to DRL §236(B)(2)(b)(1-5) and 22 NYCRR §202.16-a (1-7); imposing such penalties as the Court deems appropriate to impose in order to vindicate the important purposes of the automatic orders; granting related prophylactic and compensatory relief, as set forth in the Order to Show Cause, requiring the payment by the Husband of fees in connection with this motion. Further, the Wife requested various restrictions on the Husband's business dealings, the appointment of a receiver, production of the Husband's father's revocable trust and monthly rolling details of same. The April 15, 2014 Short Form Order imposed various forms of restraints on both parties' spending. Each party sought various temporary changes to the Court's temporary Short Form Order, and although inquired by the Court, the parties do not consent to keep the restraints intact throughout this litigation. Accordingly, the Court will issue specific orders herein regarding those requests.

In December 2013, the Midtown Manhattan office building known as 1440 Broadway was sold for $528 million dollars. Husband received a total proceed amount of $54,568,436. Out of these monies, the Husband argues that he owed and paid Federal and State income taxes of at least $30.8 million dollars for the year 2013, based on calculations provided to him by his accountants. In addition, approximately $21.172 million dollars was used to re-pay to the Stanley I. Westreich Revocable Trust, a portion of the loans which he took in connection with the acquisition and financing of the entities that led to his having an interest in the property sold. The balance, approximately $2.6 million dollars, is allegedly being held for additional Federal and State taxes and other expenses and closing costs relating to the sale and for expected capital calls for the Rosslyn Portfolio. Husband further argues that if there are any remaining proceeds, they will be needed to supplement the diluted cash flow from the management companies.

The Wife argues that the Husband's actions were in clear violation of the Automatic Orders. She further argues that the Husband's transfer of $21.172 million dollars is a sham in that he has, in essence, "taken funds out of one pocket and moved them to another pocket." In Wife's initial application, she continuously refers to the Husband as the Trustee of the Stanley I. Westreich Revocable Trust. The Wife argues that the Husband has received multiple loans from said trust and allegedly told her that "he was not expected to ever repay the principal, and told her that the loans would be forgiven at the time of his father's death." Moreover, the Wife argues that the transfer of the $21.2 million dollars back to the Trust was not "in the usual course of business". The Wife further alleges that a Temporary Receiver should be appointed to oversee all the Husband's business transactions in an attempt to negate the possibility of such transfers from occurring again.

The Husband, in opposition, argues that there were seven (7) loans from the Stanley I. Westreich Trust totaling $41,925,000 and provided a Note for each loan. The Notes expressly provide for a pre-payment without any penalty in order to allow for the repayment of the loans upon the sale of the investment in order to save on the interest charges. The Husband alleges that the parties always paid interest on these loans, of approximately $400,000 per year, of which both parties benefitted from the tax break on the interest payments and therefore argues that the Wife's allegation that the principal of these loans would not need to be repaid is inaccurate. To further support this argument, the Husband states that his life insurance policies totaling $98 million dollars are at such high amounts to secure the repayment of the loans. He further alleges that the Wife acknowledged that the principal on the loans were due when they were estate planning. In fact, allegedly to alleviate some of her concerns regarding these loans the Husband created the Anthony E. Westreich Irrevocable Trust in September 2011 and secured 3 different life insurance policies. He also argues that none of the interest on these loans was paid prior to the sale of 1440 Broadway because the loans were used to invest into this building and upon the liquidation event, he paid back what he could. He further alleges that the same transaction, the pay back of a loan was conducted in 2007 upon the sale of 237 Park when he satisfied the loan from the Helene Westreich Trust. He further argues that his conduct was not contemptuous, was in the ordinary course of business, as if the notes were a mortgage on the building, and in fact, alleviated substantial marital debt for himself, and the Wife. Husband contends that the Wife was not impaired or prejudiced in any way as, $21 million dollars in debt has been eliminated along with approximately $1.5 million dollars in interest payments27.

The requisite elements for a finding of civil contempt are as follows: a) a lawful order of the Court expressing an unequivocal mandate; b) proof, by reasonable certainty, that the Order has been disobeyed; c) knowledge of the Court order by the alleged contemnor; and d) prejudice to the right of a party to the litigation. (See Judiciary Law §753; McCormick v. Axelrod, 59 N.Y.2d 574 [1983]). Plaintiff has the burden of proving the alleged civil contempt of a Court Order by clear and convincing evidence. (Lutz v. Goldstone, 42 A.D.3d 561 [2d Dept. 2007]); Vujovic v. Vujovic, 16 A.D.3d 490 [2d Dept. 2005]).

A finding of criminal contempt requires a finding of a "willful" disobedience of a lawful mandate, and proof of guilt must be established beyond a reasonable doubt. (Judiciary Law §750; Gomes v. Gomes, 106 A.D.3d 868 [2d Dept. 2013]). In El-Dehdan v. El-Dehdan, 114 A.D.3d 4 [2d Dept. 2013]), the Appellate Division stated that "[t]he element of prejudice to a party's rights is essential to civil contempt" It is well settled that an adjudication of civil contempt is not warranted where there is no finding that a party's actions were calculated to or actually did defeat, impair or prejudice the rights and remedies of the moving party. (See Rupp-Elmasri v. Elmasra, 205 A.D.2d 394 [2d Dept. 2013]). Whether or not the principal on these loans had to be paid back, based upon the Wife's allegations of the Husband's prior statements, is a factual dispute which this Court cannot resolve on these motion papers alone. Likewise, whether or not the payment of the $21 million dollars back to the Stanley I. Westreich Trust was in the ordinary course of business, cannot be determined by this Court on the papers alone. Accordingly, the Wife's request to hold the Husband in contempt is GRANTED to the extent that the issue of whether or not the Husband is in contempt for his repayment of $21 million dollars to the Stanley I. Westreich Trust, and whether said transaction was done in the usual and ordinary course of business is referred to the trial in this matter. Given that the parties are in the middle of a matrimonial litigation with automatic orders in place; the fact that the parties admittedly lived off liquidation events, and since the Notes were not due until mid-2018, the prudent thing to have done would have been to escrow the proceeds after the payment of taxes, or seek the Court's approval prior to making said transaction.

The issue regarding the payment of approximately $30 million dollars in taxes was resolved when the Husband provided proof of said transfer during a conference before this Court.

The Husband, at the request of the Court, provided the undersigned with a copy of the Stanley I. Westreich Revocable Trust, which this Court reviewed and redacted and which was then provided to the Wife's counsel. It is clear from these documents that the Husband is not the trustee and is merely a beneficiary of same. Likewise, it is a revocable trust which can be altered at any time by the Husband's father, the one and only trustee of the trust. Therefore, the requests made by the Wife regarding the production of the trust are now moot, and her requests for ongoing discovery regarding Stanley I. Westreich Trust are DENIED.

With regard to the Wife's request for various restraints on the Husband's transactions, the Court issued a Short Form Order pertaining to the requested Temporary Restraining Orders dated April 15, 2014 (the "4/15/14 Order"). Many of the directives set forth in the 4/15/14 Order are now moot. However, after a careful review of all the papers submitted in support and opposition of the motions, the following restrictions and orders of discovery are amended as follows and shall continue until a further order of this Court or stipulation between the parties. In addition, the 4/15/14 Order is hereby vacated. It is hereby

ORDERED, that the Husband is restrained from transferring or spending or encumbering any of the remaining funds received by him as a result of the sale of 1440 Broadway, including the alleged amount of $2.6 million dollars and Wife is restrained from transferring or spending or encumbering any of the remaining funds from the $2,053,976.53 taken by her form the parties' 237 Park Account on or about April 12, 1013 except for litigation expenses in connection with this matter, and normal and customary living expenses and in accordance with any other ordered paragraphs set forth below; and it is further

ORDERED, that any overpayments associated with the 2013 tax returns when ultimately filed will be refunded and not applied to 2014 taxes. Such refunds, if any, shall be utilized by Husband for family living expenses, subject to each party's claim to reallocation, reimbursement or readjustment of same and the Husband shall provide Wife with a monthly accounting of the utilization of said funds, and shall be in accordance with other ordered paragraphs below; and it is further

ORDERED, that both the Husband and the Wife shall provide/produce by August 30, 2014, to the extent not previously produced, a detailed accounting and itemization of all of their personal transactions and expenses incurred from the date of the commencement of the action through the entire pendente lite period, which individually, and/or through a sequence of related transactions other than monthly recurring transactions such as LIPA and the like shall in the aggregate exceed FIFTEEN THOUSAND ($15,000) DOLLARS to anyone for any purpose; and it is further

ORDERED, that Husband shall provide/produce by August 30, 2014, to the extent not previously produced, a detailed accounting and itemization of all non-recurring transactions effectuated by Husband's business in excess of FIFTY THOUSAND ($50,000) DOLLARS from date of commencement of this action through the entire pendente lite period. Said accounting shall not be required to be produced for transactions and expenses of a recurring nature, such as rent, payroll and salaries, normal compensation to any person consistent with prior practice, interest and similarly recurring business expenses; and it is further

ORDERED, that both the Husband and the Wife are hereby restrained and enjoined from making any payment for personal expenses which individually and/or through a sequence of related transactions aggregate more than FIFTEEN THOUSAND ($15,000) DOLLARS(not including monthly recurring expenses such as LIPA) to anyone or to any entity for any purpose without the prior notification to and written consent of the other or by Order of this Court, except for litigation expenses in connection with this matter, taxes, mortgages, and the aggregate salaries of the household staff. This provisions is not intended to limit further pre-trial discovery to which either party believes they are entitled under the CPLR; and it is further

ORDERED, that unless otherwise agreed by the parties in writing or pursuant to further Order of this Court, both the Husband and the Wife are hereby restrained and enjoined from making any transactions to and/or from any business asset existing at the time of the commencement of this action to and/or from Husband and/or Wife, in excess of SEVENTY FIVE THOUSAND ($75,000) DOLLARS except as follows:

a) Transactions and business expenses of a recurring nature such as rent, payroll and salaries, interest and similarly recurring business and operating expenses; b) Payment of normal compensation (including that made previously in the form of distributions) consistent with prior practice; c) Payment of capital calls by Husband and/or Wife, provided that such capital call payment(s) shall only be made after advance notification within five (5) business days of receipt of a capital call demand to the other party; d) Receipt of distributions from business interests by Husband and/or Wife other than distributions for normal compensation as provided in subparagraph (b) of this "Ordered" paragraph, shall not be deposited or otherwise transferred without advance notification and written consent of the other party, or by Order of this Court as to the use of funds from such distributions. Notwithstanding the $75,000 threshold for reporting and restraint, there shall be no such threshold with respect to Husband's "perquisites", all of which he shall be required to report and be restrained from allocating to himself without prior consent of Wife or the Court on notice to Wife's attorney's; and e) Husband shall be permitted to make business investments consistent with past practice provided that Husband shall give notice to Wife of the details of such investment no less then five (5) business days prior to his making such investment.

ORDERED, that the Husband shall provide Wife and her counsel, within ten (10) business days, notice of any refinancing of a commercial property; and it is further

ORDERED, that the Husband must immediately advise Wife and her counsel as to all offers made on the Ferrari, and is ordered not to accept any price for the Ferrari that is less than $279,000, without the prior written consent of Wife or an Order of the Court, with the proceeds of sale to be placed into the joint escrow account created by the parties' counsel, subject to the parties' rights to apply to the Court for the release of such funds for the payments of any living expenses of the parties and the Children; and it is further

ORDERED, that the Husband, on a continuing basis, shall provide the Wife with any and all documents evidencing funds provided to him, and the use therefore, from the Stanley I. Westreich Trust beginning from the date of commencement until the finalization of this matter.

With regard to the appointment of a receiver, such an act is a drastic remedy that should not be lightly granted. (See DaSilva v. DaSilva, 225 A.D.2d 513 [2d Dept. 1996]). It is well settled that the appointment of a temporary receiver is an extreme remedy which can only be invoked in cases in which the moving party has made a clear evidentiary showing of the necessity for conservation of the property and protection of the interests of the movant. Similarly, such relief is typically granted upon a showing of a history of failing to comply with standing court orders directing discovery payment of support, and fees. (See, Adinolfi v. Adinolfi, 168 A.D.2d 401 [2d Dept. 1990]).

Accordingly, Wife's request to appoint a receiver over the Husband's assets of whatever kind and wherever situated, whether business or personal, is DENIED.

MOTION SEQUENCE 006

The Husband brought this Order to Show Cause seeking a) the cancellation of the NetJets contracts; b) reimbursement from the Wife for the costs of maintaining the contracts from April 6, 2014 until their cancellation; and c) any refunds in connection with termination of the contract to be utilized by the Husband for the parties' living expenses (including legal fees). The parties resolved this motion pursuant to the stipulation dated July 15, 2014.

This constitutes the Decision and Order of this Court.

All other relief requested and not decided herein is DENIED.

FootNotes


1. Motion Sequence 004.
2. Wife alleges that during the marriage she made significant contributions to this family business, which the Husband downplays in his motions.
3. 1440 Broadway is at issue in the Wife's motion seeking to hold Husband in contempt (005).
4. This is the name utilized by the parties because the U. S. Coast Guard is/was the tenant.
5. Approximately 10 buildings.
6. The note for the loan to the Helene Westreich Trust allowed for the Husband to pay yearly interest to the trust and provided for prepayment of the note, without penalty. Husband alleges that the prepayment clause was requested by him as it was anticipated, and expected, that once the investment property sold, for which the loan was utilized, the loan would be repaid in full.
7. The parties employed a groundsman who has worked for them exclusively for 8 years. The Wife alleges that he receives holiday bonuses, overtime at holiday times, during holiday parties, during birthday parties and any time he has worked overtime and on weekends for the Children's parties. His annual salary is $48,000 with a debit allowance of upwards of $5,000. The parties also employed a housekeeper and a nanny at $700 per week and provided very generous gifts to them. The Wife is requesting that the Husband pay $18,428 per month for "Household Help" pursuant to her sworn Statement of Net Worth.
8. Motion Sequence 005.
9. Wife alleges that the memberships at Congressional Country Club, Ocean Forest Country Club, Friars Head Golf Club and all three (3) clubs in Sea Island, Georgia were paid by Monday Properties through the Husband's personal account.
10. Motion Sequence 006.
11. Wife alleges that every fall, she commissioned at least 10,000 daffodils and tulips to be planted so they would be in bloom during the spring time.
12. Accounting provided by Wife's accountant in her Reply.
13. The Wife's Mother who purchased the parties' former apartment on 67th Street in Manhattan and borrowed money from the parties in order to do so.
14. Part of the parties' estate planning.
15. $97,063 per month directly to Wife; $139,075 per month to third parties; for all payments to be made from earnings and not marital assets; (total request is for $2,833,656 per year for the Wife and the Children representing the parties' pre-separation life style).
16. This request was increased to $850,000 in Wife's motion for contempt and reiterated in her Reply.
17. This request was increased to $300,000 in Wife's motion for contempt and reiterated in her Reply.
18. The July 15, 2014 Stipulation between the parties and so-ordered by the Court resolves the issue of the Sandra Novick Note.
19. At Page 55, paragraph 131 of Wife's Affidavit she states "I am certain that after the Court has read and absorbed my affidavit and my forensic accountant Henry Guberman's affidavit that describe and explain the details of our regal lifestyle and how our lifestyle has not been a lifestyle funded with regular earnings that are deposited systematically throughout a given year, but, instead, is predicated on ongoing "liquidity events" such as the sale of substantial liquidity events that largely are in the control of my husband, it will not find my application unreasonable and will find my husband's demands unfair and untenable."
20. The nanny and groundsman/driver are responsible for purchasing supplies and necessities for the Children, former marital residence and the Wife.
21. Not inclusive of $1,400 lease payment for her Mercedes 450.
22. Wife had requested $40,000 for NetJets, but this issue was resolved pursuant to 7/15/14 Stipulation.
23. The Husband has recently petitioned this Court to order the sale of this residence — Motion Sequence 009, which is scheduled to be fully submitted to this Court on August 27, 2014.
24. The Husband filed a motion seeking a modification of the Custody Agreement. Said motion is scheduled to be fully submitted to the Court on August 5, 2014.
25. Updated and increased to this amount in Wife's motion for contempt and in her Reply.
26. Updated and increased to this amount in Wife's motion for contempt and in her Reply.
27. Wife refutes said claim in her Reply papers.

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