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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK — MATRIMONIAL PART 7

JONATHAN R. CALDWELL,

Petitioner,

-against-

DR. ELENA M. CALDWELL (née BARANOVA),

Respondent.

Index No. 312847/2022

Before: Hon. Patricia K. Lessing, J.S.C.

MEMORANDUM OF LAW IN OPPOSITION TO RESPONDENT'S MOTION FOR PENDENTE LITE RELIEF

CALDERWOOD & HARKNESS LLP 425 Lexington Avenue, 38th Floor New York, New York 10017 Telephone: (212) 558-4000 Facsimile: (212) 558-4001

Attorneys for Petitioner Jonathan R. Caldwell

Priya Anand, Esq. (Responsible Partner) Nadia Petrov, Esq. (Of Counsel) James Underwood, Esq. (Of Counsel)

PRELIMINARY STATEMENT

Calderwood & Harkness LLP represents Petitioner Jonathan R. Caldwell in this matrimonial dissolution proceeding, which was commenced by the filing of a Petition for Dissolution on June 14, 2022. This memorandum of law is respectfully submitted in opposition to the pendente lite motion filed by Respondent Dr. Elena M. Caldwell (née Baranova) on or about August 30, 2022, in which Respondent seeks two forms of interim relief: (1) an award of temporary spousal maintenance during the pendency of this action, and (2) an order granting her exclusive use and occupancy of the marital residence located at 14 Gramercy Park South, Apt. PH-A, New York, New York 10003.

Respondent is represented in this action by Rachel Whitford, Esq. of Whitford Garza & Stein LLP, 600 Third Avenue, 22nd Floor, New York, New York 10016. The procedural history of this matter is straightforward: the Petition for Dissolution was filed by Mr. Caldwell on June 14, 2022. Respondent filed her Answer and Counterclaims on July 11, 2022. A Preliminary Conference was held before this Court, the Honorable Patricia K. Lessing, J.S.C., presiding, on August 22, 2022, at which time a discovery schedule was established and the parties were directed to exchange Statements of Net Worth. Respondent's pending motion was filed shortly thereafter and is now before this Court for determination.

Petitioner respectfully submits that both branches of Respondent's pendente lite motion should be denied in their entirety. As set forth in detail below, Respondent's applications are unsupported by the law and the facts of this case for three independent and complementary reasons.

First, the parties' valid and enforceable prenuptial agreement, which was executed on June 7, 2008 — fourteen days before the wedding — after full financial disclosure and with each party represented by independent counsel, governs and limits any spousal maintenance obligation. That agreement provides a general waiver of spousal maintenance, with a limited exception for marriages lasting ten or more years, in which case the lower-earning spouse may receive maintenance capped at $15,000 per month for a period not to exceed five years. The agreement is entitled to a presumption of enforceability, and Respondent's as-yet unadjudicated challenges to its validity do not warrant this Court's disregard of its terms at the pendente lite stage.

Second, Respondent is a high-earning professional with substantial independent income. Dr. Caldwell is a board-certified dermatologist who founded and solely owns Baranova Dermatology & Aesthetics PLLC, a thriving medical practice with two Manhattan locations that generates approximately $1.9 million in annual revenue. She holds retirement accounts valued at approximately $1.1 million. She is not the dependent, financially vulnerable spouse that temporary maintenance provisions are designed to protect. Her income, while admittedly less than Petitioner's, is far more than sufficient to meet her reasonable needs during the pendency of this litigation.

Third, Respondent's application for exclusive use and occupancy of the marital residence is wholly without merit. Dr. Caldwell voluntarily vacated the marital residence on April 3, 2022 — more than two months before this action was even commenced — and has since established herself in a separate residence at 320 West 76th Street, Apt. 12B, New York, New York 10023. Her departure was not precipitated by any order of protection, allegation of domestic violence, or exigent circumstance. She left of her own volition. Having done so, she cannot now seek to displace Mr. Caldwell — who has remained in continuous possession and who holds sole title to the property — from the very home she chose to leave. New York courts have consistently declined to grant exclusive occupancy under such circumstances.

Petitioner wishes to make clear, however, that he does not oppose a reasonable award of temporary child support for the parties' two minor children — Sophia Caldwell (born February 12, 2012, age 10) and Alexander Caldwell (born August 29, 2014, age 8) — consistent with the Child Support Standards Act and this Court's discretion with respect to high-income families. Mr. Caldwell is a devoted father who remains fully committed to the financial welfare of his children during and after these proceedings.

STATEMENT OF FACTS

A. The Marriage and Separation

Jonathan R. Caldwell (date of birth: March 17, 1970; age 52) and Dr. Elena M. Caldwell, née Elena M. Baranova (date of birth: September 4, 1974; age 48), were married on June 21, 2008, in a ceremony held in New York, New York. At the time this action was commenced by the filing of the Petition for Dissolution on June 14, 2022, the marriage was of approximately fourteen years' duration.

During the course of the marriage, the parties resided together as husband and wife at the marital residence located at 14 Gramercy Park South, Apt. PH-A, New York, New York 10003, a penthouse apartment that Mr. Caldwell purchased in March 2010. The parties are the parents of two minor children: Sophia Caldwell, born February 12, 2012 (currently age 10), and Alexander Caldwell, born August 29, 2014 (currently age 8). Both children are enrolled at Lockwood Academy, a private school located at 251 East 84th Street, New York, New York 10028. Sophia is currently in the fifth grade, and her annual tuition is $58,500. Alexander is currently in the third grade, and his annual tuition is $54,200. The children have attended Lockwood Academy since kindergarten, and the school constitutes the center of their academic and social lives.

On April 3, 2022, Dr. Caldwell voluntarily vacated the marital residence. Her departure was not preceded by any allegation of domestic violence, any application for an order of protection, or any other emergency circumstance. She relocated to a separate apartment at 320 West 76th Street, Apt. 12B, New York, New York 10023, where she has resided continuously since that date. At the time Respondent's pending motion was filed, she had been living at her separate residence for approximately five months.

Mr. Caldwell has remained in continuous residence at the marital home since Dr. Caldwell's departure. He continues to maintain the property, pay the monthly mortgage of approximately $22,800 to Trident National Bank, cover all carrying costs including property taxes, insurance, and building maintenance charges, and ensure that the residence remains a stable and welcoming home for the parties' children during his custodial time.

The Petition for Dissolution was filed by Mr. Caldwell on June 14, 2022, approximately two months after the parties' physical separation, commencing this action under Index No. 312847/2022. Dr. Caldwell filed her Answer and Counterclaims on July 11, 2022. A Preliminary Conference was conducted before this Court on August 22, 2022, at which time the Court established a discovery schedule and directed the parties to exchange Statements of Net Worth and to begin the process of financial disclosure.

B. The Prenuptial Agreement

Prior to the marriage, the parties entered into a prenuptial agreement dated June 7, 2008, fourteen days before the wedding ceremony. The agreement was the product of careful negotiation conducted over the course of several weeks, and both parties were represented by experienced, independent matrimonial counsel throughout the drafting, negotiation, and execution process.

Mr. Caldwell was represented by Gerald Sable, Esq. of Harwick & Sable LLP, 780 Third Avenue, Suite 3200, New York, New York 10017. Mr. Sable is a seasoned matrimonial practitioner with over thirty years of experience in high-net-worth prenuptial and postnuptial agreements. Dr. Baranova (as she was then known) was independently represented by Miriam Fedorov, Esq. of Fedorov Law Office, 55 West 46th Street, Suite 901, New York, New York 10036. Ms. Fedorov was personally selected by Dr. Baranova and was separately compensated for her services; Mr. Caldwell did not pay for or select Dr. Baranova's counsel.

Both parties made full and complete financial disclosures in connection with the execution of the agreement. Schedule A to the prenuptial agreement set forth Mr. Caldwell's assets, which at that time totaled approximately $25.2 million. Schedule B set forth Dr. Baranova's assets, which at that time totaled approximately $310,000. Each party acknowledged in the agreement that she or he had reviewed the other party's financial disclosure, had been afforded a full and fair opportunity to ask questions and seek clarification, and was satisfied that the disclosure was complete and accurate.

The prenuptial agreement contains a comprehensive set of provisions governing the parties' respective rights and obligations in the event of marital dissolution. Of particular relevance to the pending motion is Article VII of the agreement, which addresses spousal maintenance. Article VII provides a general waiver of spousal maintenance by both parties. However, Article VII, Section 3 contains a limited exception to that waiver: in the event that the marriage lasts ten or more years, the lower-earning spouse shall be entitled to spousal maintenance in an amount not to exceed $15,000 per month, for a period not to exceed five years following the entry of a final judgment of dissolution. The agreement does not distinguish between temporary and permanent maintenance; the $15,000 monthly cap applies to "any and all spousal maintenance or support, however denominated, whether temporary, pendente lite, or permanent."

The prenuptial agreement is a valid, enforceable contract under New York Domestic Relations Law § 236(B)(3). It was executed by parties who were each represented by independent counsel. Full financial disclosure was made by both parties. The agreement was executed fourteen days before the wedding — a period that, while not lengthy, is well within the range that New York courts have found to be sufficient for meaningful review and deliberation, particularly where, as here, both parties had the benefit of independent legal advice. There is no colorable claim that the agreement was the product of fraud, duress, overreaching, or unconscionability.

Respondent has indicated in her Answer and Counterclaims that she intends to challenge the enforceability of the prenuptial agreement on several grounds, including alleged inadequacy of financial disclosure, alleged duress arising from the proximity of the execution date to the wedding, and alleged unconscionability. Those challenges have not been adjudicated, and, as discussed below in the Argument section of this memorandum, they do not warrant disregarding the agreement's provisions at the pendente lite stage.

C. Respondent's Financial Circumstances and Independent Income

Far from being a dependent spouse without financial means, Dr. Elena M. Caldwell is a highly successful medical professional with substantial income and established business infrastructure.

Dr. Caldwell is a board-certified dermatologist licensed to practice medicine in the State of New York. She is the founder and sole owner of Baranova Dermatology & Aesthetics PLLC (EIN: 46-3827194), a professional limited liability company organized under the laws of the State of New York. The practice operates from two locations in Manhattan:

• Location 1: 1120 Park Avenue, Suite 3A, New York, New York 10128 — the practice's flagship office, which has been in operation since 2011.

• Location 2: 200 West 57th Street, Suite 607, New York, New York 10019 — a satellite office opened in 2018 to serve the practice's expanding patient base.

Baranova Dermatology & Aesthetics PLLC generates approximately $1.9 million in annual revenue. The practice employs a staff of approximately twelve individuals, including two associate dermatologists, three physician assistants, two medical aestheticians, and administrative support personnel. The practice offers a full range of medical and cosmetic dermatological services, including skin cancer screening, Mohs surgery referrals, cosmetic injectables, laser treatments, and aesthetic procedures. The parties' jointly retained business valuator, Kenneth Orloff, CPA, ABV, of Orloff & Feinberg LLP, has determined an agreed preliminary value of the practice at approximately $2.4 million.

In addition to her practice income, Dr. Caldwell holds retirement assets consisting of a SEP-IRA and a 401(k) plan, with a combined value of approximately $1.1 million as of the most recent available statements. Dr. Caldwell also maintains personal bank accounts and investment accounts, the full extent of which will be determined through the discovery process in this action.

It is critical that this Court recognize, in evaluating Respondent's pendente lite motion, that Dr. Caldwell is not a dependent spouse without means. She is not a homemaker who sacrificed her career during the marriage. She is not a spouse who lacks employable skills or earning capacity. To the contrary, she is a medical doctor who completed her dermatology residency at NYU Grossman School of Medicine, obtained board certification, founded and built a successful private practice, and generates nearly $2 million per year in revenue from that practice. She has the education, training, professional credentials, established patient base, and business infrastructure to continue earning at a high level for the foreseeable future. These facts are central to the analysis of her claim for temporary spousal maintenance.

D. Petitioner's Financial Circumstances

Mr. Caldwell is the founder and managing principal of Caldwell Meridian Capital LLC (EIN: 26-4831057), a New York-based asset management firm headquartered at 590 Madison Avenue, 30th Floor, New York, New York 10022. Caldwell Meridian Capital ("CMC") is a registered investment adviser with the Securities and Exchange Commission that manages approximately $1.4 billion in assets under management across multiple investment vehicles, including separately managed accounts and commingled investment funds.

Mr. Caldwell holds an 85% ownership interest in CMC. The remaining 15% equity interest is held by two junior partners: Derek Fong (10%) and Alicia Drummond (5%). Mr. Caldwell serves as the firm's Chief Investment Officer and is actively involved in the day-to-day management of the firm's investment strategies, client relationships, and business operations.

CMC generates approximately $14.0 million in annual management fee revenue, calculated as a percentage of assets under management. In addition, the firm earns incentive or performance-based fee revenue, which is inherently variable and dependent upon investment performance; in 2021, incentive fee revenue was approximately $8.4 million. Mr. Caldwell's total compensation from CMC for the 2021 fiscal year was approximately $5.9 million, consisting of a base salary of $3.8 million and distributions of $2.1 million.

Mr. Caldwell also controls Caldwell Realty Holdings LP (EIN: 27-1924683), a limited partnership through which he holds a portfolio of commercial real estate investments. The general partner of Caldwell Realty Holdings LP is Caldwell Realty GP LLC (EIN: 27-1924690), which is wholly owned and controlled by Mr. Caldwell. The portfolio consists of twelve commercial real estate properties located across Manhattan, Brooklyn, and Westchester County. The combined appraised value of these properties is approximately $63.8 million. Outstanding indebtedness on these properties, held by Trident National Bank under revolving credit facility No. TN-CRH-2017-09034, totals approximately $18.7 million, yielding net equity of approximately $45.1 million.

Inclusive of his interests in CMC, his real estate holdings through Caldwell Realty Holdings LP, personal investment and bank accounts, the marital residence, and other assets both separate and marital, Mr. Caldwell's overall personal net worth is estimated at approximately $112.5 million. Petitioner does not dispute that he is a high-net-worth individual or that there is a meaningful income disparity between the parties. However, as discussed in the Argument section below, income disparity alone does not justify temporary spousal maintenance where, as here, a valid prenuptial agreement governs and the lower-earning spouse has substantial independent means.

E. The Marital Residence

The marital residence at 14 Gramercy Park South, Apt. PH-A, New York, New York 10003, is a penthouse apartment in a prewar cooperative building overlooking Gramercy Park. The residence is titled solely in the name of Jonathan R. Caldwell. It was purchased in March 2010, approximately two years into the marriage, with marital funds, at a purchase price of $6.9 million.

The residence has been appraised at a current fair market value of approximately $11.4 million. An outstanding mortgage is held by Trident National Bank, Loan No. TN-2010-447821, with a current balance of approximately $4.1 million. This yields net equity in the residence of approximately $7.3 million.

The prenuptial agreement specifically addresses the disposition of the marital residence in the event of dissolution. Article IX, Section 2 of the agreement provides that the marital residence is to be sold and the net proceeds (after satisfaction of the outstanding mortgage and customary closing costs) divided as follows: 65% to the titled spouse (Mr. Caldwell) and 35% to the non-titled spouse (Dr. Caldwell). Alternatively, Article IX, Section 3 provides that the titled spouse may elect to buy out the non-titled spouse's share at fair market value, as determined by an independent appraisal, within ninety days of the entry of a final judgment of dissolution. These provisions contemplate Mr. Caldwell's continued association with and ultimate control over the marital residence.

As previously noted, Dr. Caldwell voluntarily vacated the marital residence on April 3, 2022 — more than two months before this action was commenced. She has since established a separate and stable residence at 320 West 76th Street, Apt. 12B, New York, New York 10023, a residential apartment on the Upper West Side of Manhattan. Mr. Caldwell has remained in continuous residence at the marital home since Dr. Caldwell's departure and continues to maintain the property, pay the mortgage, and bear all carrying costs associated with the residence.

ARGUMENT

POINT I.

THE COURT SHOULD DENY RESPONDENT'S REQUEST FOR TEMPORARY SPOUSAL MAINTENANCE

A. The Prenuptial Agreement Governs and Limits Maintenance. The prenuptial agreement executed by the parties on June 7, 2008, is a valid and enforceable contract under New York law, and its maintenance provisions must govern this Court's determination of Respondent's application for temporary spousal maintenance.

New York Domestic Relations Law § 236(B)(3) expressly authorizes parties to a marriage to enter into agreements "before or during the marriage" that, among other things, "provide for the amount and duration of maintenance." The statute further provides that such agreements "shall be valid and enforceable in a matrimonial action" provided they are "in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded." DRL § 236(B)(3). The parties' prenuptial agreement satisfies each of these requirements. It is in writing. It was subscribed by both parties. It was duly acknowledged before a notary public. It is, on its face, a valid and enforceable agreement under New York law.

The circumstances surrounding the execution of the agreement further confirm its validity and enforceability. Both parties were represented by experienced, independent matrimonial counsel at the time of execution. Mr. Caldwell was represented by Gerald Sable, Esq. of Harwick & Sable LLP, and Dr. Baranova was independently represented by Miriam Fedorov, Esq. of Fedorov Law Office. Both parties executed comprehensive financial disclosures, attached to the agreement as Schedules A and B, which set forth their respective assets in detail — Mr. Caldwell's assets totaling approximately $25.2 million and Dr. Baranova's assets totaling approximately $310,000. Each party acknowledged in the agreement that she or he had reviewed the other's financial disclosure and was satisfied with its completeness.

The agreement was executed fourteen days before the wedding. While Respondent has suggested in her pleadings that this timeline created an element of duress, this contention is without merit. New York courts have repeatedly held that a prenuptial agreement executed days — or even hours — before a wedding ceremony is not per se invalid or the product of duress, particularly where both parties were represented by independent counsel and had the opportunity for meaningful review. See Cioffi-Petrakis v. Petrakis, 72 A.D.3d 868, 869 (2d Dep't 2010) (upholding prenuptial agreement executed one day before wedding where both parties were represented by counsel); Colello v. Colello, 9 A.D.3d 855, 858 (4th Dep't 2004) (holding that proximity to wedding date, without more, does not establish duress); Strong v. Dubin, 75 A.D.3d 66, 71 (1st Dep't 2010) (enforcing agreement signed shortly before wedding where wife had independent counsel). Here, Dr. Baranova had a full two weeks between the date of execution and the wedding ceremony — ample time to review the agreement with her attorney, seek modifications, or decline to sign.

The relevant maintenance provision — Article VII, Section 3 — provides a general waiver of spousal maintenance, with a limited exception: for marriages lasting ten or more years, the lower-earning spouse shall be entitled to maintenance "in an amount not to exceed Fifteen Thousand Dollars ($15,000) per month, for a period not to exceed five (5) years following the entry of a final judgment of dissolution." The agreement specifies that this cap applies to "any and all spousal maintenance or support, however denominated, whether temporary, pendente lite, or permanent." The language is clear, unambiguous, and all-encompassing.

The parties' marriage has exceeded ten years, thereby triggering the limited exception to the general maintenance waiver. Accordingly, the maximum maintenance to which Dr. Caldwell may be entitled under the agreement is $15,000 per month, for not more than five years. This cap represents the contractual ceiling on any maintenance obligation — whether temporary or permanent — and should govern this Court's analysis of the pending motion.

New York courts have consistently held that valid prenuptial agreements limiting or waiving spousal maintenance are enforceable at the pendente lite stage. In Anonymous v. Anonymous, 123 A.D.3d 581 (1st Dep't 2014), the First Department upheld the trial court's reliance on the terms of a prenuptial agreement in setting temporary maintenance, finding that the agreement's maintenance provisions provided the appropriate framework for pendente lite relief. Similarly, in Gottlieb v. Gottlieb, 138 A.D.3d 30 (1st Dep't 2016), the First Department recognized that "a valid agreement between the parties is a factor of considerable weight in determining temporary maintenance." And in Petracca v. Petracca, 101 A.D.3d 695 (2d Dep't 2012), the Second Department reversed a trial court's pendente lite maintenance award that exceeded the cap established in the parties' prenuptial agreement, holding that the agreement's provisions should have been given effect at the temporary stage.

The principle underlying these decisions is straightforward: parties who enter into prenuptial agreements do so in reliance on their terms. A court that disregards an agreement's maintenance provisions at the pendente lite stage effectively nullifies the bargain before the agreement's validity has even been adjudicated, prejudicing the party who relied on the agreement and creating a fait accompli that may be difficult to reverse. As the First Department observed in Gottlieb, "to ignore the agreement at the temporary stage would be to deprive it of practical significance, since temporary awards often establish a baseline that persists throughout litigation." 138 A.D.3d at 36.

Respondent has indicated in her Answer and Counterclaims that she intends to challenge the enforceability of the prenuptial agreement on three grounds: (1) alleged inadequacy of financial disclosure; (2) alleged duress arising from the proximity of the execution date to the wedding; and (3) alleged unconscionability. These challenges have not been adjudicated, and they do not justify ignoring the agreement at the pendente lite stage for several reasons.

First, the agreement is entitled to a presumption of validity. New York law places a "heavy burden" on the party seeking to set aside a prenuptial agreement. Gottlieb, 138 A.D.3d at 35; see also Bloomfield v. Bloomfield, 97 N.Y.2d 188, 193 (2001) (prenuptial agreements are "encouraged by the courts as a means of resolving disputes" and are entitled to the same presumption of enforceability as any other contract). Respondent bears that burden, and until she has met it — through evidentiary submissions, testimony, and a determination by this Court — the agreement remains presumptively valid and its terms presumptively binding.

Second, each of Respondent's three challenges is substantively weak on its face. As to disclosure, full financial disclosures were exchanged via Schedules A and B, and both parties acknowledged their completeness. As to duress, the agreement was executed fourteen days before the wedding while Respondent had the benefit of independent counsel — a circumstance that New York courts have consistently found insufficient to establish duress. See Cioffi-Petrakis, 72 A.D.3d at 869. As to unconscionability, the agreement provides Dr. Caldwell with a potential maintenance stream of up to $15,000 per month for five years (a total of up to $900,000), a 35% share of the marital residence equity (approximately $2.555 million based on current values), and other property distribution provisions. These terms may not be precisely what Respondent would have wished in hindsight, but they are far from unconscionable.

Third, and most importantly, to the extent there is any genuine dispute regarding the agreement's enforceability, the proper course is to preserve the status quo pending resolution of that dispute — not to award Respondent maintenance in excess of the agreed cap. Doing so would effectively prejudge the enforceability challenge in Respondent's favor, grant her more than she bargained for before she has established any legal right to receive it, and deprive Petitioner of the benefit of a contract he entered into in good faith.

Accordingly, this Court should give effect to the prenuptial agreement's maintenance provisions and deny Respondent's request for temporary spousal maintenance in excess of $15,000 per month.

B. Respondent's Independent Income Eliminates the Need for Temporary Maintenance. Even setting aside the prenuptial agreement's maintenance cap, Respondent's application for temporary spousal maintenance fails because she lacks the financial need that is a prerequisite to any such award. Temporary spousal maintenance under DRL § 236(B)(5-a) is designed to serve a specific and limited purpose: to ensure that a dependent spouse can meet her reasonable needs during the pendency of a matrimonial action. It is not designed to equalize the incomes of the parties, to guarantee a non-monied spouse a particular lifestyle, or to provide a windfall to a spouse who already possesses substantial independent means.

Dr. Elena M. Caldwell is, by any measure, a high-earning professional with substantial independent income. She is a board-certified dermatologist — a medical specialty that consistently ranks among the highest-compensated fields of medicine. She is not merely an employee who could be terminated or downsized; she is the founder and sole owner of Baranova Dermatology & Aesthetics PLLC, an established and thriving medical practice with two Manhattan locations. The practice generates approximately $1.9 million in annual revenue and has an agreed preliminary value of $2.4 million. Dr. Caldwell controls the practice entirely, sets her own schedule, determines her own compensation, and enjoys complete autonomy over the business. She has built a patient base over more than a decade of practice and employs a full staff of medical and administrative professionals.

Dr. Caldwell's income of approximately $1.9 million per year places her in the top fraction of one percent of all earners in the United States. While it is true that Mr. Caldwell's income is significantly higher — his 2021 compensation from CMC was approximately $5.9 million — the relevant inquiry at the pendente lite stage is not whether the parties' incomes are equal but whether the lower-earning spouse has sufficient resources to meet her reasonable needs during the litigation. Dr. Caldwell emphatically does. Her practice income alone is more than sufficient to cover her housing costs, living expenses, medical expenses, transportation, and any other reasonable expenditure.

The statutory framework for temporary spousal maintenance under DRL § 236(B)(5-a) employs a formulaic approach as a starting point but also directs the court to consider a range of factors in determining whether to adjust the presumptive award upward or downward. Application of those factors to the circumstances of this case strongly supports the denial of temporary maintenance — or, at most, the entry of a nominal award.

The statute directs the court to consider, among other things:

(1) The income and property of the respective parties. Mr. Caldwell earned approximately $5.9 million in 2021. Dr. Caldwell's practice generates approximately $1.9 million in annual revenue. While a disparity exists, Dr. Caldwell's income is substantial by any objective standard and is more than adequate to meet her reasonable needs. She also holds retirement accounts valued at approximately $1.1 million.

(2) The standard of living of the parties established during the marriage. The parties enjoyed a high standard of living during the marriage. However, the purpose of temporary maintenance is not to guarantee the precise marital standard of living to both parties during litigation — particularly where, as here, the lower-earning spouse has ample means to maintain a comfortable lifestyle independently. Dr. Caldwell's practice income permits her to maintain a high standard of living by virtually any measure.

(3) The duration of the marriage. The marriage lasted approximately fourteen years. This is a marriage of moderate-to-long duration, which ordinarily might weigh in favor of some maintenance. However, this factor must be considered in conjunction with all other relevant factors, including the parties' respective incomes and the existence of a prenuptial agreement.

(4) The age and health of the parties. Mr. Caldwell is 52 years old and Dr. Caldwell is 48 years old. Both parties are in good health. Neither party has any medical condition that impairs his or her ability to work.

(5) The present and future earning capacity of the parties. Dr. Caldwell's earning capacity is well-established and, if anything, continues to grow. Her practice expanded from one location to two in 2018, and its revenue has increased in each of the past three years. There is no reason to believe that her earning capacity will diminish in the foreseeable future. This factor weighs strongly against an award of temporary maintenance.

(6) The need for education or training to enable a party to become self-supporting. This factor is inapplicable. Dr. Caldwell holds a medical degree, is board-certified in a lucrative medical specialty, and is already entirely self-supporting through her existing practice. She requires no additional education, training, or transition period to achieve self-sufficiency.

(7) Any other factor which the court shall expressly find to be just and proper. The existence of a valid prenuptial agreement capping maintenance at $15,000 per month is a factor that the court should find just and proper to consider. The agreement reflects the parties' own assessment of what constitutes fair and adequate maintenance in the event of dissolution, made at a time when both parties had the benefit of independent legal advice and full financial disclosure.

Even under a purely statutory analysis that entirely disregards the prenuptial agreement, the overwhelming weight of the relevant factors counsels against any meaningful award of temporary maintenance. Dr. Caldwell's practice income of approximately $1.9 million per year is more than sufficient to enable her to meet her reasonable needs and maintain a comfortable lifestyle during the pendency of this action. She is a highly educated, professionally established, financially independent woman who requires no spousal subsidy to support herself.

The cases upon which Respondent may be expected to rely are distinguishable. The typical temporary maintenance case involves a non-monied or substantially lower-earning spouse — often a homemaker or part-time worker — who has limited independent resources and genuinely cannot meet basic needs without interim support. See, e.g., Prichep v. Prichep, 52 A.D.3d 61, 66-67 (2d Dep't 2008) (temporary maintenance appropriate where wife had limited income and husband's income was substantially greater). That is not this case. Dr. Caldwell is not a homemaker. She did not sacrifice her career during the marriage. She built a medical practice that now generates nearly $2 million per year. She is, in every meaningful sense, a "monied spouse" in her own right — simply one whose income is lower than that of her even-higher-earning husband.

The income gap between the parties, while real, does not create a need for temporary maintenance. Need is the touchstone of the temporary maintenance inquiry, and Respondent cannot demonstrate it. Her application for temporary spousal maintenance should be denied.

C. No Basis for Temporary Maintenance Exceeding the Prenuptial Cap. To the extent this Court considers any award of temporary maintenance — which Petitioner respectfully submits would be unwarranted — Petitioner urges the Court to limit any such award to the $15,000 per month cap established in the prenuptial agreement.

The prenuptial agreement's maintenance provisions were the product of arm's-length negotiation between two parties, each represented by independent and experienced matrimonial counsel. At the time the agreement was executed, both parties had the benefit of full financial disclosure. Both parties understood the terms to which they were agreeing. Both parties signed the agreement voluntarily and with the advice of counsel. The $15,000 monthly cap represents the parties' own carefully considered judgment as to what would constitute fair and adequate maintenance in the event of a dissolution following a marriage of ten or more years.

Any temporary maintenance award in excess of the prenuptial cap would undermine the parties' contractual bargain and effectively prejudge the enforceability challenge that Respondent has raised but has not yet litigated. As the First Department recognized in Gottlieb v. Gottlieb, 138 A.D.3d 30 (1st Dep't 2016), a court should not "render the agreement a nullity at the outset of litigation" by awarding temporary relief inconsistent with its terms. Rather, the agreement should be given effect pending a final determination of its enforceability. Id. at 37.

This principle applies with particular force here, where Respondent's challenges to the agreement are substantively weak and where her independent income is more than sufficient to meet her reasonable needs. Even if this Court were to conclude that some temporary maintenance is warranted — a conclusion Petitioner disputes — there is no justification for exceeding the $15,000 monthly cap. Doing so would grant Respondent more than she agreed to receive, impose on Petitioner more than he agreed to pay, and effectively reward Respondent for challenging an agreement that she has not yet shown to be unenforceable.

Moreover, the practical reality is that any temporary maintenance award will likely persist for the duration of this litigation, which could extend for a year or more. An overly generous temporary award would establish a baseline that would be difficult to reverse and would create a disincentive for Respondent to negotiate a reasonable resolution. The prenuptial cap provides a fair and reasonable limit that protects both parties' interests during the pendency of the action.

For all of these reasons, to the extent the Court awards any temporary maintenance, the award should not exceed $15,000 per month.

POINT II.

THE COURT SHOULD DENY RESPONDENT'S REQUEST FOR EXCLUSIVE USE AND OCCUPANCY OF THE MARITAL RESIDENCE

A. Respondent Voluntarily Vacated the Marital Residence. Respondent's application for exclusive use and occupancy of the marital residence at 14 Gramercy Park South, Apt. PH-A, New York, New York 10003, is fatally undermined by a single, dispositive fact: Dr. Caldwell voluntarily vacated the marital residence on April 3, 2022, more than two months before this action was commenced and approximately five months before the filing of the pending motion. She relocated to a separate apartment at 320 West 76th Street, Apt. 12B, New York, New York 10023, where she has resided continuously since her departure.

Dr. Caldwell's departure from the marital residence was entirely voluntary. It was not precipitated by any order of protection, any allegation of domestic violence, any act of physical or emotional intimidation, or any other exigent circumstance. No police report was filed. No complaint was made to any court or law enforcement agency. Dr. Caldwell simply chose, of her own accord, to leave the marital home and establish a separate residence elsewhere in Manhattan.

Under well-settled New York law, a party who voluntarily vacates the marital residence forfeits — or, at the very least, substantially diminishes — any claim to exclusive use and occupancy. Courts are deeply reluctant to grant exclusive occupancy motions that would displace a party who has remained in continuous possession of the marital home, particularly where the departing spouse left voluntarily rather than under compulsion, and particularly where the departing spouse has established adequate alternative housing. See Dushaj v. Dushaj, 158 A.D.3d 618, 619 (2d Dep't 2018) (denying exclusive occupancy where movant had voluntarily vacated and resided elsewhere); Ackermann v. Ackermann, 120 A.D.3d 1279 (2d Dep't 2014) (same); Mavroudis v. Mavroudis, 77 A.D.3d 921 (2d Dep't 2010) (voluntary departure from marital home weighs against exclusive occupancy).

The rationale for this rule is both practical and equitable. A spouse who voluntarily leaves the marital home has, by her own actions, demonstrated that she can live separately and does not require exclusive possession of the residence. To grant such a spouse's subsequent application for exclusive occupancy would reward strategic behavior, displace the party who has remained in the home and maintained it, and effectively allow the departing spouse to use the courts to regain a position she voluntarily abandoned.

Here, Dr. Caldwell left the marital home on April 3, 2022. She found and moved into a separate apartment. She has lived there for approximately five months. She has not alleged that her departure was involuntary or that she was forced out. Having chosen to leave, she cannot now seek to displace Mr. Caldwell from the home he has continuously occupied and maintained. Her application for exclusive use and occupancy should be denied on this basis alone.

B. The Residence Is Titled Solely in Petitioner's Name. The marital residence at 14 Gramercy Park South, Apt. PH-A, is titled solely in the name of Jonathan R. Caldwell. While Petitioner acknowledges that the residence was purchased during the marriage with marital funds in March 2010 at a purchase price of $6.9 million, and that the residence may therefore constitute marital property subject to equitable distribution, the fact of sole title in Petitioner's name is a relevant consideration in the exclusive occupancy analysis.

New York courts have recognized that title ownership, while not dispositive, is a factor that weighs against granting exclusive occupancy to a non-titled spouse — particularly where, as here, the titled spouse has remained in continuous possession and the non-titled spouse has voluntarily departed. See Kessler v. Kessler, 33 A.D.3d 42 (2d Dep't 2006) (considering title ownership as one factor in exclusive occupancy analysis). The titled spouse's property interest creates a presumptive right to continued possession that should not be lightly disturbed by interim court order.

Moreover, the prenuptial agreement specifically addresses the disposition of the marital residence upon dissolution. Article IX, Section 2 of the agreement provides that the marital residence is to be sold and the net proceeds divided 65% to the titled spouse (Mr. Caldwell) and 35% to the non-titled spouse (Dr. Caldwell). Article IX, Section 3 grants the titled spouse the right to elect to buy out the non-titled spouse's share at fair market value within ninety days of the entry of a final judgment of dissolution. These provisions contemplate that Mr. Caldwell will retain primary association with and control over the marital residence. They further contemplate that Mr. Caldwell may ultimately elect to retain the property by purchasing Dr. Caldwell's 35% share. Displacing Mr. Caldwell from the residence pendente lite would be inconsistent with these provisions and would undermine the parties' contractual expectations.

C. Respondent Has Adequate Alternative Housing. Even assuming arguendo that Dr. Caldwell's voluntary departure and the title issue were not, standing alone, sufficient to deny her application, she has failed to demonstrate any need for exclusive occupancy because she has adequate alternative housing.

Dr. Caldwell currently resides at 320 West 76th Street, Apt. 12B, New York, New York 10023 — a separate, established residence on the Upper West Side of Manhattan. She has lived at this address continuously since April 3, 2022. She has the financial means to maintain this residence comfortably given her practice's approximately $1.9 million in annual revenue. There is no indication that her current living situation is inadequate, unstable, or otherwise unsuitable.

Respondent may argue that exclusive occupancy is necessary for the welfare of the parties' children. This argument is without merit. Both children attend Lockwood Academy at 251 East 84th Street, New York, New York 10028. Lockwood Academy is accessible from both the marital residence at 14 Gramercy Park South (approximately a 20-minute commute by car or public transit) and from Dr. Caldwell's current residence at 320 West 76th Street (approximately a 15-minute commute). Neither residence is more convenient to the school than the other; if anything, Dr. Caldwell's current Upper West Side apartment is slightly closer. The children can maintain their school routines, extracurricular activities, and social connections from either location. There is simply no basis for the proposition that the children's welfare requires that Dr. Caldwell — who chose to leave the marital home — be awarded exclusive occupancy of it.

Furthermore, Mr. Caldwell has demonstrated his commitment to the children's welfare by maintaining the marital residence as a stable and comfortable home during his custodial time. He continues to pay the monthly mortgage, property taxes, insurance, and all carrying costs associated with the property. He has ensured that the children's rooms, belongings, and routines at the marital home remain undisturbed. There is no suggestion that the children are in any way disadvantaged by the current arrangement.

D. No Domestic Strife or Safety Concerns Warrant Exclusive Occupancy. The standard for exclusive use and occupancy of a marital residence under New York law requires a showing of "domestic strife so great as to render the continued cohabitation of the parties intolerable" or a demonstration that "the health and safety of the movant or the children would be endangered by continued cohabitation." See Minter v. Minter, 153 A.D.3d 765, 766 (2d Dep't 2017); Davis v. Davis, 138 A.D.3d 904, 906 (2d Dep't 2016). This is a high threshold, and it is one that Respondent cannot meet.

Respondent has not alleged domestic violence. She has not sought or obtained an order of protection. She has not filed any police report or made any complaint to law enforcement regarding Mr. Caldwell's conduct. She has not identified any safety concern — whether involving herself or the children — that would justify exclusive occupancy. In her moving papers, Respondent's sole basis for seeking exclusive occupancy appears to be her desire to return to the marital home and her assertion that it is the "family home" to which she and the children have an emotional attachment. While understandable as a personal preference, this falls far short of the legal standard.

Moreover, the predicate for an exclusive occupancy order — continued cohabitation that is intolerable or dangerous — is entirely absent in this case. The parties are not cohabiting. They have not cohabited since April 3, 2022. Dr. Caldwell left of her own accord and has lived separately for approximately five months. There is no cohabitation to render intolerable. There is no shared living space that poses a risk to either party's health or safety. The premise for the relief Dr. Caldwell seeks simply does not exist.

The cases in which New York courts have granted exclusive occupancy motions are readily distinguishable. Those cases typically involve situations where the parties continue to reside together in the marital home, where the atmosphere has become hostile, volatile, or dangerous, and where continued cohabitation poses a genuine risk to one or both parties or to the children. See, e.g., Marano v. Marano, 90 A.D.3d 1119, 1121 (3d Dep't 2011) (exclusive occupancy granted where parties continued to cohabit and husband's behavior created unsafe environment); Callirgos v. Callirgos, 178 A.D.3d 840 (2d Dep't 2019) (exclusive occupancy proper where domestic violence and orders of protection were present). None of those circumstances are present here. The parties are living separately. There is no domestic strife. There is no safety concern. There is no basis for exclusive occupancy.

For all of the foregoing reasons, Respondent's application for exclusive use and occupancy of the marital residence should be denied.

POINT III.

PETITIONER DOES NOT OPPOSE A REASONABLE AWARD OF TEMPORARY CHILD SUPPORT

Petitioner wishes to make clear to this Court that he does not oppose a reasonable award of temporary child support for the parties' two minor children, Sophia Caldwell (born February 12, 2012, currently age 10) and Alexander Caldwell (born August 29, 2014, currently age 8). Mr. Caldwell is a loving and devoted father who is fully committed to ensuring that his children's financial needs are met during the pendency of this action and beyond.

Under the Child Support Standards Act ("CSSA"), DRL § 240(1-b), child support is calculated based on the combined parental income of both parties, with the non-custodial parent's pro rata share applied to the statutory percentage applicable to two children (25% of combined parental income up to the statutory cap). Where, as here, the parties' combined income substantially exceeds the statutory income cap — which is currently $163,000 per year — the court has discretion to apply the statutory percentage to the amount of combined parental income above the cap, or to determine an appropriate award based on enumerated statutory factors.

Petitioner recognizes his obligation to contribute to the children's support during the pendency of this action. He has, in fact, continued to provide substantial financial support to the children since the parties' separation, including paying the mortgage and carrying costs on the marital residence (where the children reside during his custodial time), contributing to private school tuition at Lockwood Academy, and covering the children's extracurricular activities, medical expenses, and other day-to-day costs.

Mr. Caldwell is willing to continue contributing to the children's private school tuition at Lockwood Academy. Sophia's annual tuition is $58,500 and Alexander's annual tuition is $54,200, for a combined total of $112,700 per year. Mr. Caldwell is also willing to continue contributing to the children's extracurricular activities — which currently include piano lessons, soccer, and swimming — as well as to uninsured medical and dental expenses for both children. These contributions are consistent with the standard of living the children enjoyed during the marriage and reflect Mr. Caldwell's genuine commitment to their welfare.

Petitioner submits that a temporary child support award in the range consistent with statutory guidelines, based on the parties' respective incomes and the court's discretion for high-income earners, is appropriate. In exercising its discretion under the CSSA for combined parental income exceeding the statutory cap, this Court should consider the factors enumerated in DRL § 240(1-b)(f), including but not limited to:

(1) The financial resources of the custodial and non-custodial parent, and those of the children;

(2) The physical and emotional health of the children and their special needs or aptitudes;

(3) The standard of living the children would have enjoyed had the marriage not been dissolved;

(4) The tax consequences to the parties;

(5) The non-monetary contributions that the parents will make toward the care and well-being of the children;

(6) The educational needs of either parent;

(7) A determination that the gross income of one parent is substantially less than the other parent's gross income;

(8) The needs of the children, including their need to continue attending private school at Lockwood Academy, where they have been enrolled since kindergarten and where their academic and social lives are centered; and

(9) Any other factors the court determines are relevant in each case.

Given the parties' substantial combined income, the children's enrollment at a private school with annual tuition exceeding $112,000 combined, and the lifestyle the children have enjoyed, Petitioner anticipates that the Court will exercise its discretion to award child support above the statutory minimum. Mr. Caldwell does not seek to minimize his child support obligation; he seeks only to ensure that the award is reasonable, consistent with the CSSA framework, and reflective of both parents' financial contributions and responsibilities.

Petitioner respectfully requests that any temporary child support order specify the allocation of responsibility for private school tuition, extracurricular activities, and unreimbursed medical expenses so that both parties understand their respective obligations clearly during the pendency of the action.

CONCLUSION

For all of the foregoing reasons, Petitioner Jonathan R. Caldwell respectfully requests that this Court enter an order:

1. Denying Respondent's application for temporary spousal maintenance in its entirety, or, in the alternative, limiting any temporary maintenance award to no more than $15,000 per month, consistent with the parties' prenuptial agreement executed on June 7, 2008;

2. Denying Respondent's application for exclusive use and occupancy of the marital residence located at 14 Gramercy Park South, Apt. PH-A, New York, New York 10003; and

3. Entering an order for temporary child support for the parties' minor children, Sophia Caldwell and Alexander Caldwell, in a reasonable amount consistent with the Child Support Standards Act and the parties' respective financial circumstances, including appropriate provision for private school tuition at Lockwood Academy, extracurricular activities, and unreimbursed medical expenses.

Petitioner further requests such other and further relief as this Court deems just and proper.

Respectfully submitted,

CALDERWOOD & HARKNESS LLP

By: ________

Priya Anand, Esq. Attorneys for Petitioner Jonathan R. Caldwell

425 Lexington Avenue, 38th Floor New York, New York 10017 Telephone: (212) 558-4000 Facsimile: (212) 558-4001

Dated: September 15, 2022 New York, New York

CERTIFICATE OF SERVICE

I, Priya Anand, an attorney duly admitted to practice before the courts of the State of New York, hereby certify that on September 15, 2022, a true and correct copy of the foregoing Memorandum of Law in Opposition to Respondent's Motion for Pendente Lite Relief was served upon:

Rachel Whitford, Esq. Whitford Garza & Stein LLP 600 Third Avenue, 22nd Floor New York, New York 10016 Telephone: (212) 490-7200 Attorneys for Respondent Dr. Elena M. Caldwell

Service was made by the following methods: (1) electronic filing through the New York State Courts Electronic Filing System ("NYSCEF"), and (2) electronic mail to counsel's email address of record.

________________________________________

Priya Anand, Esq.

Dated: September 15, 2022 New York, New York

VERIFICATION

STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK )

Priya Anand, Esq., an attorney duly admitted to practice law in the State of New York, hereby affirms the following under the penalties of perjury:

I am a partner at Calderwood & Harkness LLP, 425 Lexington Avenue, 38th Floor, New York, New York 10017, attorneys of record for Petitioner Jonathan R. Caldwell in the above-captioned action. I make this verification on behalf of Petitioner because the factual allegations contained in the foregoing Memorandum of Law are based upon information and records in the files of this office and upon documents produced by the parties in this action.

The factual statements made in the foregoing Memorandum of Law are true and correct to the best of my knowledge, information, and belief, based upon my review of relevant documents, financial records, and information provided by my client, and I make this verification in good faith.

________________________________________

Priya Anand, Esq.

Dated: September 15, 2022 New York, New York

Page

PRELIMINARY STATEMENT	3
STATEMENT OF FACTS	5
A. The Marriage and Separation	5
B. The Prenuptial Agreement	7
C. Respondent's Financial Circumstances and Independent Income	9
D. Petitioner's Financial Circumstances	11
E. The Marital Residence	13
ARGUMENT	15
POINT I: THE COURT SHOULD DENY RESPONDENT'S REQUEST FOR TEMPORARY SPOUSAL MAINTENANCE	15
A. The Prenuptial Agreement Governs and Limits Maintenance	15
B. Respondent's Independent Income Eliminates the Need for Temporary Maintenance	20
C. No Basis for Temporary Maintenance Exceeding the Prenuptial Cap	24
POINT II: THE COURT SHOULD DENY RESPONDENT'S REQUEST FOR EXCLUSIVE USE AND OCCUPANCY OF THE MARITAL RESIDENCE	27
A. Respondent Voluntarily Vacated the Marital Residence	27
B. The Residence Is Titled Solely in Petitioner's Name	29
C. Respondent Has Adequate Alternative Housing	31
D. No Domestic Strife or Safety Concerns Warrant Exclusive Occupancy	33
POINT III: PETITIONER DOES NOT OPPOSE A REASONABLE AWARD OF TEMPORARY CHILD SUPPORT	35
CONCLUSION	38

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK — MATRIMONIAL PART 7
JONATHAN R. CALDWELL,
Petitioner,
-against-
DR. ELENA M. CALDWELL (née BARANOVA),
Respondent.
Index No. 312847/2022
Before: Hon. Patricia K. Lessing, J.S.C.
MEMORANDUM OF LAW IN OPPOSITION TO RESPONDENT'S MOTION FOR PENDENTE LITE RELIEF
CALDERWOOD & HARKNESS LLP 425 Lexington Avenue, 38th Floor New York, New York 10017 Telephone: (212) 558-4000 Facsimile: (212) 558-4001
Attorneys for Petitioner Jonathan R. Caldwell
Priya Anand, Esq. (Responsible Partner) Nadia Petrov, Esq. (Of Counsel) James Underwood, Esq. (Of Counsel)
TABLE OF CONTENTS
PRELIMINARY STATEMENT
Calderwood & Harkness LLP represents Petitioner Jonathan R. Caldwell in this matrimonial dissolution proceeding, which was commenced by the filing of a Petition for Dissolution on June 14, 2022. This memorandum of law is respectfully submitted in opposition to the pendente lite motion filed by Respondent Dr. Elena M. Caldwell (née Baranova) on or about August 30, 2022, in which Respondent seeks two forms of interim relief: (1) an award of temporary spousal maintenance during the pendency of this action, and (2) an order granting her exclusive use and occupancy of the marital residence located at 14 Gramercy Park South, Apt. PH-A, New York, New York 10003.
Respondent is represented in this action by Rachel Whitford, Esq. of Whitford Garza & Stein LLP, 600 Third Avenue, 22nd Floor, New York, New York 10016. The procedural history of this matter is straightforward: the Petition for Dissolution was filed by Mr. Caldwell on June 14, 2022. Respondent filed her Answer and Counterclaims on July 11, 2022. A Preliminary Conference was held before this Court, the Honorable Patricia K. Lessing, J.S.C., presiding, on August 22, 2022, at which time a discovery schedule was established and the parties were directed to exchange Statements of Net Worth. Respondent's pending motion was filed shortly thereafter and is now before this Court for determination.
Petitioner respectfully submits that both branches of Respondent's pendente lite motion should be denied in their entirety. As set forth in detail below, Respondent's applications are unsupported by the law and the facts of this case for three independent and complementary reasons.
First, the parties' valid and enforceable prenuptial agreement, which was executed on June 7, 2008 — fourteen days before the wedding — after full financial disclosure and with each party represented by independent counsel, governs and limits any spousal maintenance obligation. That agreement provides a general waiver of spousal maintenance, with a limited exception for marriages lasting ten or more years, in which case the lower-earning spouse may receive maintenance capped at $15,000 per month for a period not to exceed five years. The agreement is entitled to a presumption of enforceability, and Respondent's as-yet unadjudicated challenges to its validity do not warrant this Court's disregard of its terms at the pendente lite stage.
Second, Respondent is a high-earning professional with substantial independent income. Dr. Caldwell is a board-certified dermatologist who founded and solely owns Baranova Dermatology & Aesthetics PLLC, a thriving medical practice with two Manhattan locations that generates approximately $1.9 million in annual revenue. She holds retirement accounts valued at approximately $1.1 million. She is not the dependent, financially vulnerable spouse that temporary maintenance provisions are designed to protect. Her income, while admittedly less than Petitioner's, is far more than sufficient to meet her reasonable needs during the pendency of this litigation.
Third, Respondent's application for exclusive use and occupancy of the marital residence is wholly without merit. Dr. Caldwell voluntarily vacated the marital residence on April 3, 2022 — more than two months before this action was even commenced — and has since established herself in a separate residence at 320 West 76th Street, Apt. 12B, New York, New York 10023. Her departure was not precipitated by any order of protection, allegation of domestic violence, or exigent circumstance. She left of her own volition. Having done so, she cannot now seek to displace Mr. Caldwell — who has remained in continuous possession and who holds sole title to the property — from the very home she chose to leave. New York courts have consistently declined to grant exclusive occupancy under such circumstances.
Petitioner wishes to make clear, however, that he does not oppose a reasonable award of temporary child support for the parties' two minor children — Sophia Caldwell (born February 12, 2012, age 10) and Alexander Caldwell (born August 29, 2014, age 8) — consistent with the Child Support Standards Act and this Court's discretion with respect to high-income families. Mr. Caldwell is a devoted father who remains fully committed to the financial welfare of his children during and after these proceedings.
STATEMENT OF FACTS
A. The Marriage and Separation
Jonathan R. Caldwell (date of birth: March 17, 1970; age 52) and Dr. Elena M. Caldwell, née Elena M. Baranova (date of birth: September 4, 1974; age 48), were married on June 21, 2008, in a ceremony held in New York, New York. At the time this action was commenced by the filing of the Petition for Dissolution on June 14, 2022, the marriage was of approximately fourteen years' duration.
During the course of the marriage, the parties resided together as husband and wife at the marital residence located at 14 Gramercy Park South, Apt. PH-A, New York, New York 10003, a penthouse apartment that Mr. Caldwell purchased in March 2010. The parties are the parents of two minor children: Sophia Caldwell, born February 12, 2012 (currently age 10), and Alexander Caldwell, born August 29, 2014 (currently age 8). Both children are enrolled at Lockwood Academy, a private school located at 251 East 84th Street, New York, New York 10028. Sophia is currently in the fifth grade, and her annual tuition is $58,500. Alexander is currently in the third grade, and his annual tuition is $54,200. The children have attended Lockwood Academy since kindergarten, and the school constitutes the center of their academic and social lives.
On April 3, 2022, Dr. Caldwell voluntarily vacated the marital residence. Her departure was not preceded by any allegation of domestic violence, any application for an order of protection, or any other emergency circumstance. She relocated to a separate apartment at 320 West 76th Street, Apt. 12B, New York, New York 10023, where she has resided continuously since that date. At the time Respondent's pending motion was filed, she had been living at her separate residence for approximately five months.
Mr. Caldwell has remained in continuous residence at the marital home since Dr. Caldwell's departure. He continues to maintain the property, pay the monthly mortgage of approximately $22,800 to Trident National Bank, cover all carrying costs including property taxes, insurance, and building maintenance charges, and ensure that the residence remains a stable and welcoming home for the parties' children during his custodial time.
The Petition for Dissolution was filed by Mr. Caldwell on June 14, 2022, approximately two months after the parties' physical separation, commencing this action under Index No. 312847/2022. Dr. Caldwell filed her Answer and Counterclaims on July 11, 2022. A Preliminary Conference was conducted before this Court on August 22, 2022, at which time the Court established a discovery schedule and directed the parties to exchange Statements of Net Worth and to begin the process of financial disclosure.
B. The Prenuptial Agreement
Prior to the marriage, the parties entered into a prenuptial agreement dated June 7, 2008, fourteen days before the wedding ceremony. The agreement was the product of careful negotiation conducted over the course of several weeks, and both parties were represented by experienced, independent matrimonial counsel throughout the drafting, negotiation, and execution process.
Mr. Caldwell was represented by Gerald Sable, Esq. of Harwick & Sable LLP, 780 Third Avenue, Suite 3200, New York, New York 10017. Mr. Sable is a seasoned matrimonial practitioner with over thirty years of experience in high-net-worth prenuptial and postnuptial agreements. Dr. Baranova (as she was then known) was independently represented by Miriam Fedorov, Esq. of Fedorov Law Office, 55 West 46th Street, Suite 901, New York, New York 10036. Ms. Fedorov was personally selected by Dr. Baranova and was separately compensated for her services; Mr. Caldwell did not pay for or select Dr. Baranova's counsel.
Both parties made full and complete financial disclosures in connection with the execution of the agreement. Schedule A to the prenuptial agreement set forth Mr. Caldwell's assets, which at that time totaled approximately $25.2 million. Schedule B set forth Dr. Baranova's assets, which at that time totaled approximately $310,000. Each party acknowledged in the agreement that she or he had reviewed the other party's financial disclosure, had been afforded a full and fair opportunity to ask questions and seek clarification, and was satisfied that the disclosure was complete and accurate.
The prenuptial agreement contains a comprehensive set of provisions governing the parties' respective rights and obligations in the event of marital dissolution. Of particular relevance to the pending motion is Article VII of the agreement, which addresses spousal maintenance. Article VII provides a general waiver of spousal maintenance by both parties. However, Article VII, Section 3 contains a limited exception to that waiver: in the event that the marriage lasts ten or more years, the lower-earning spouse shall be entitled to spousal maintenance in an amount not to exceed $15,000 per month, for a period not to exceed five years following the entry of a final judgment of dissolution. The agreement does not distinguish between temporary and permanent maintenance; the $15,000 monthly cap applies to "any and all spousal maintenance or support, however denominated, whether temporary, pendente lite, or permanent."
The prenuptial agreement is a valid, enforceable contract under New York Domestic Relations Law § 236(B)(3). It was executed by parties who were each represented by independent counsel. Full financial disclosure was made by both parties. The agreement was executed fourteen days before the wedding — a period that, while not lengthy, is well within the range that New York courts have found to be sufficient for meaningful review and deliberation, particularly where, as here, both parties had the benefit of independent legal advice. There is no colorable claim that the agreement was the product of fraud, duress, overreaching, or unconscionability.
Respondent has indicated in her Answer and Counterclaims that she intends to challenge the enforceability of the prenuptial agreement on several grounds, including alleged inadequacy of financial disclosure, alleged duress arising from the proximity of the execution date to the wedding, and alleged unconscionability. Those challenges have not been adjudicated, and, as discussed below in the Argument section of this memorandum, they do not warrant disregarding the agreement's provisions at the pendente lite stage.
C. Respondent's Financial Circumstances and Independent Income
Far from being a dependent spouse without financial means, Dr. Elena M. Caldwell is a highly successful medical professional with substantial income and established business infrastructure.
Dr. Caldwell is a board-certified dermatologist licensed to practice medicine in the State of New York. She is the founder and sole owner of Baranova Dermatology & Aesthetics PLLC (EIN: 46-3827194), a professional limited liability company organized under the laws of the State of New York. The practice operates from two locations in Manhattan:
• Location 1: 1120 Park Avenue, Suite 3A, New York, New York 10128 — the practice's flagship office, which has been in operation since 2011.
• Location 2: 200 West 57th Street, Suite 607, New York, New York 10019 — a satellite office opened in 2018 to serve the practice's expanding patient base.
Baranova Dermatology & Aesthetics PLLC generates approximately $1.9 million in annual revenue. The practice employs a staff of approximately twelve individuals, including two associate dermatologists, three physician assistants, two medical aestheticians, and administrative support personnel. The practice offers a full range of medical and cosmetic dermatological services, including skin cancer screening, Mohs surgery referrals, cosmetic injectables, laser treatments, and aesthetic procedures. The parties' jointly retained business valuator, Kenneth Orloff, CPA, ABV, of Orloff & Feinberg LLP, has determined an agreed preliminary value of the practice at approximately $2.4 million.
In addition to her practice income, Dr. Caldwell holds retirement assets consisting of a SEP-IRA and a 401(k) plan, with a combined value of approximately $1.1 million as of the most recent available statements. Dr. Caldwell also maintains personal bank accounts and investment accounts, the full extent of which will be determined through the discovery process in this action.
It is critical that this Court recognize, in evaluating Respondent's pendente lite motion, that Dr. Caldwell is not a dependent spouse without means. She is not a homemaker who sacrificed her career during the marriage. She is not a spouse who lacks employable skills or earning capacity. To the contrary, she is a medical doctor who completed her dermatology residency at NYU Grossman School of Medicine, obtained board certification, founded and built a successful private practice, and generates nearly $2 million per year in revenue from that practice. She has the education, training, professional credentials, established patient base, and business infrastructure to continue earning at a high level for the foreseeable future. These facts are central to the analysis of her claim for temporary spousal maintenance.
D. Petitioner's Financial Circumstances
Mr. Caldwell is the founder and managing principal of Caldwell Meridian Capital LLC (EIN: 26-4831057), a New York-based asset management firm headquartered at 590 Madison Avenue, 30th Floor, New York, New York 10022. Caldwell Meridian Capital ("CMC") is a registered investment adviser with the Securities and Exchange Commission that manages approximately $1.4 billion in assets under management across multiple investment vehicles, including separately managed accounts and commingled investment funds.
Mr. Caldwell holds an 85% ownership interest in CMC. The remaining 15% equity interest is held by two junior partners: Derek Fong (10%) and Alicia Drummond (5%). Mr. Caldwell serves as the firm's Chief Investment Officer and is actively involved in the day-to-day management of the firm's investment strategies, client relationships, and business operations.
CMC generates approximately $14.0 million in annual management fee revenue, calculated as a percentage of assets under management. In addition, the firm earns incentive or performance-based fee revenue, which is inherently variable and dependent upon investment performance; in 2021, incentive fee revenue was approximately $8.4 million. Mr. Caldwell's total compensation from CMC for the 2021 fiscal year was approximately $5.9 million, consisting of a base salary of $3.8 million and distributions of $2.1 million.
Mr. Caldwell also controls Caldwell Realty Holdings LP (EIN: 27-1924683), a limited partnership through which he holds a portfolio of commercial real estate investments. The general partner of Caldwell Realty Holdings LP is Caldwell Realty GP LLC (EIN: 27-1924690), which is wholly owned and controlled by Mr. Caldwell. The portfolio consists of twelve commercial real estate properties located across Manhattan, Brooklyn, and Westchester County. The combined appraised value of these properties is approximately $63.8 million. Outstanding indebtedness on these properties, held by Trident National Bank under revolving credit facility No. TN-CRH-2017-09034, totals approximately $18.7 million, yielding net equity of approximately $45.1 million.
Inclusive of his interests in CMC, his real estate holdings through Caldwell Realty Holdings LP, personal investment and bank accounts, the marital residence, and other assets both separate and marital, Mr. Caldwell's overall personal net worth is estimated at approximately $112.5 million. Petitioner does not dispute that he is a high-net-worth individual or that there is a meaningful income disparity between the parties. However, as discussed in the Argument section below, income disparity alone does not justify temporary spousal maintenance where, as here, a valid prenuptial agreement governs and the lower-earning spouse has substantial independent means.
E. The Marital Residence
The marital residence at 14 Gramercy Park South, Apt. PH-A, New York, New York 10003, is a penthouse apartment in a prewar cooperative building overlooking Gramercy Park. The residence is titled solely in the name of Jonathan R. Caldwell. It was purchased in March 2010, approximately two years into the marriage, with marital funds, at a purchase price of $6.9 million.
The residence has been appraised at a current fair market value of approximately $11.4 million. An outstanding mortgage is held by Trident National Bank, Loan No. TN-2010-447821, with a current balance of approximately $4.1 million. This yields net equity in the residence of approximately $7.3 million.
The prenuptial agreement specifically addresses the disposition of the marital residence in the event of dissolution. Article IX, Section 2 of the agreement provides that the marital residence is to be sold and the net proceeds (after satisfaction of the outstanding mortgage and customary closing costs) divided as follows: 65% to the titled spouse (Mr. Caldwell) and 35% to the non-titled spouse (Dr. Caldwell). Alternatively, Article IX, Section 3 provides that the titled spouse may elect to buy out the non-titled spouse's share at fair market value, as determined by an independent appraisal, within ninety days of the entry of a final judgment of dissolution. These provisions contemplate Mr. Caldwell's continued association with and ultimate control over the marital residence.
As previously noted, Dr. Caldwell voluntarily vacated the marital residence on April 3, 2022 — more than two months before this action was commenced. She has since established a separate and stable residence at 320 West 76th Street, Apt. 12B, New York, New York 10023, a residential apartment on the Upper West Side of Manhattan. Mr. Caldwell has remained in continuous residence at the marital home since Dr. Caldwell's departure and continues to maintain the property, pay the mortgage, and bear all carrying costs associated with the residence.
ARGUMENT
POINT I.
THE COURT SHOULD DENY RESPONDENT'S REQUEST FOR TEMPORARY SPOUSAL MAINTENANCE
A. The Prenuptial Agreement Governs and Limits Maintenance. The prenuptial agreement executed by the parties on June 7, 2008, is a valid and enforceable contract under New York law, and its maintenance provisions must govern this Court's determination of Respondent's application for temporary spousal maintenance.
New York Domestic Relations Law § 236(B)(3) expressly authorizes parties to a marriage to enter into agreements "before or during the marriage" that, among other things, "provide for the amount and duration of maintenance." The statute further provides that such agreements "shall be valid and enforceable in a matrimonial action" provided they are "in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded." DRL § 236(B)(3). The parties' prenuptial agreement satisfies each of these requirements. It is in writing. It was subscribed by both parties. It was duly acknowledged before a notary public. It is, on its face, a valid and enforceable agreement under New York law.
The circumstances surrounding the execution of the agreement further confirm its validity and enforceability. Both parties were represented by experienced, independent matrimonial counsel at the time of execution. Mr. Caldwell was represented by Gerald Sable, Esq. of Harwick & Sable LLP, and Dr. Baranova was independently represented by Miriam Fedorov, Esq. of Fedorov Law Office. Both parties executed comprehensive financial disclosures, attached to the agreement as Schedules A and B, which set forth their respective assets in detail — Mr. Caldwell's assets totaling approximately $25.2 million and Dr. Baranova's assets totaling approximately $310,000. Each party acknowledged in the agreement that she or he had reviewed the other's financial disclosure and was satisfied with its completeness.
The agreement was executed fourteen days before the wedding. While Respondent has suggested in her pleadings that this timeline created an element of duress, this contention is without merit. New York courts have repeatedly held that a prenuptial agreement executed days — or even hours — before a wedding ceremony is not per se invalid or the product of duress, particularly where both parties were represented by independent counsel and had the opportunity for meaningful review. See Cioffi-Petrakis v. Petrakis, 72 A.D.3d 868, 869 (2d Dep't 2010) (upholding prenuptial agreement executed one day before wedding where both parties were represented by counsel); Colello v. Colello, 9 A.D.3d 855, 858 (4th Dep't 2004) (holding that proximity to wedding date, without more, does not establish duress); Strong v. Dubin, 75 A.D.3d 66, 71 (1st Dep't 2010) (enforcing agreement signed shortly before wedding where wife had independent counsel). Here, Dr. Baranova had a full two weeks between the date of execution and the wedding ceremony — ample time to review the agreement with her attorney, seek modifications, or decline to sign.
The relevant maintenance provision — Article VII, Section 3 — provides a general waiver of spousal maintenance, with a limited exception: for marriages lasting ten or more years, the lower-earning spouse shall be entitled to maintenance "in an amount not to exceed Fifteen Thousand Dollars ($15,000) per month, for a period not to exceed five (5) years following the entry of a final judgment of dissolution." The agreement specifies that this cap applies to "any and all spousal maintenance or support, however denominated, whether temporary, pendente lite, or permanent." The language is clear, unambiguous, and all-encompassing.
The parties' marriage has exceeded ten years, thereby triggering the limited exception to the general maintenance waiver. Accordingly, the maximum maintenance to which Dr. Caldwell may be entitled under the agreement is $15,000 per month, for not more than five years. This cap represents the contractual ceiling on any maintenance obligation — whether temporary or permanent — and should govern this Court's analysis of the pending motion.
New York courts have consistently held that valid prenuptial agreements limiting or waiving spousal maintenance are enforceable at the pendente lite stage. In Anonymous v. Anonymous, 123 A.D.3d 581 (1st Dep't 2014), the First Department upheld the trial court's reliance on the terms of a prenuptial agreement in setting temporary maintenance, finding that the agreement's maintenance provisions provided the appropriate framework for pendente lite relief. Similarly, in Gottlieb v. Gottlieb, 138 A.D.3d 30 (1st Dep't 2016), the First Department recognized that "a valid agreement between the parties is a factor of considerable weight in determining temporary maintenance." And in Petracca v. Petracca, 101 A.D.3d 695 (2d Dep't 2012), the Second Department reversed a trial court's pendente lite maintenance award that exceeded the cap established in the parties' prenuptial agreement, holding that the agreement's provisions should have been given effect at the temporary stage.
The principle underlying these decisions is straightforward: parties who enter into prenuptial agreements do so in reliance on their terms. A court that disregards an agreement's maintenance provisions at the pendente lite stage effectively nullifies the bargain before the agreement's validity has even been adjudicated, prejudicing the party who relied on the agreement and creating a fait accompli that may be difficult to reverse. As the First Department observed in Gottlieb, "to ignore the agreement at the temporary stage would be to deprive it of practical significance, since temporary awards often establish a baseline that persists throughout litigation." 138 A.D.3d at 36.
Respondent has indicated in her Answer and Counterclaims that she intends to challenge the enforceability of the prenuptial agreement on three grounds: (1) alleged inadequacy of financial disclosure; (2) alleged duress arising from the proximity of the execution date to the wedding; and (3) alleged unconscionability. These challenges have not been adjudicated, and they do not justify ignoring the agreement at the pendente lite stage for several reasons.
First, the agreement is entitled to a presumption of validity. New York law places a "heavy burden" on the party seeking to set aside a prenuptial agreement. Gottlieb, 138 A.D.3d at 35; see also Bloomfield v. Bloomfield, 97 N.Y.2d 188, 193 (2001) (prenuptial agreements are "encouraged by the courts as a means of resolving disputes" and are entitled to the same presumption of enforceability as any other contract). Respondent bears that burden, and until she has met it — through evidentiary submissions, testimony, and a determination by this Court — the agreement remains presumptively valid and its terms presumptively binding.
Second, each of Respondent's three challenges is substantively weak on its face. As to disclosure, full financial disclosures were exchanged via Schedules A and B, and both parties acknowledged their completeness. As to duress, the agreement was executed fourteen days before the wedding while Respondent had the benefit of independent counsel — a circumstance that New York courts have consistently found insufficient to establish duress. See Cioffi-Petrakis, 72 A.D.3d at 869. As to unconscionability, the agreement provides Dr. Caldwell with a potential maintenance stream of up to $15,000 per month for five years (a total of up to $900,000), a 35% share of the marital residence equity (approximately $2.555 million based on current values), and other property distribution provisions. These terms may not be precisely what Respondent would have wished in hindsight, but they are far from unconscionable.
Third, and most importantly, to the extent there is any genuine dispute regarding the agreement's enforceability, the proper course is to preserve the status quo pending resolution of that dispute — not to award Respondent maintenance in excess of the agreed cap. Doing so would effectively prejudge the enforceability challenge in Respondent's favor, grant her more than she bargained for before she has established any legal right to receive it, and deprive Petitioner of the benefit of a contract he entered into in good faith.
Accordingly, this Court should give effect to the prenuptial agreement's maintenance provisions and deny Respondent's request for temporary spousal maintenance in excess of $15,000 per month.
B. Respondent's Independent Income Eliminates the Need for Temporary Maintenance. Even setting aside the prenuptial agreement's maintenance cap, Respondent's application for temporary spousal maintenance fails because she lacks the financial need that is a prerequisite to any such award. Temporary spousal maintenance under DRL § 236(B)(5-a) is designed to serve a specific and limited purpose: to ensure that a dependent spouse can meet her reasonable needs during the pendency of a matrimonial action. It is not designed to equalize the incomes of the parties, to guarantee a non-monied spouse a particular lifestyle, or to provide a windfall to a spouse who already possesses substantial independent means.
Dr. Elena M. Caldwell is, by any measure, a high-earning professional with substantial independent income. She is a board-certified dermatologist — a medical specialty that consistently ranks among the highest-compensated fields of medicine. She is not merely an employee who could be terminated or downsized; she is the founder and sole owner of Baranova Dermatology & Aesthetics PLLC, an established and thriving medical practice with two Manhattan locations. The practice generates approximately $1.9 million in annual revenue and has an agreed preliminary value of $2.4 million. Dr. Caldwell controls the practice entirely, sets her own schedule, determines her own compensation, and enjoys complete autonomy over the business. She has built a patient base over more than a decade of practice and employs a full staff of medical and administrative professionals.
Dr. Caldwell's income of approximately $1.9 million per year places her in the top fraction of one percent of all earners in the United States. While it is true that Mr. Caldwell's income is significantly higher — his 2021 compensation from CMC was approximately $5.9 million — the relevant inquiry at the pendente lite stage is not whether the parties' incomes are equal but whether the lower-earning spouse has sufficient resources to meet her reasonable needs during the litigation. Dr. Caldwell emphatically does. Her practice income alone is more than sufficient to cover her housing costs, living expenses, medical expenses, transportation, and any other reasonable expenditure.
The statutory framework for temporary spousal maintenance under DRL § 236(B)(5-a) employs a formulaic approach as a starting point but also directs the court to consider a range of factors in determining whether to adjust the presumptive award upward or downward. Application of those factors to the circumstances of this case strongly supports the denial of temporary maintenance — or, at most, the entry of a nominal award.
The statute directs the court to consider, among other things:
(1) The income and property of the respective parties. Mr. Caldwell earned approximately $5.9 million in 2021. Dr. Caldwell's practice generates approximately $1.9 million in annual revenue. While a disparity exists, Dr. Caldwell's income is substantial by any objective standard and is more than adequate to meet her reasonable needs. She also holds retirement accounts valued at approximately $1.1 million.
(2) The standard of living of the parties established during the marriage. The parties enjoyed a high standard of living during the marriage. However, the purpose of temporary maintenance is not to guarantee the precise marital standard of living to both parties during litigation — particularly where, as here, the lower-earning spouse has ample means to maintain a comfortable lifestyle independently. Dr. Caldwell's practice income permits her to maintain a high standard of living by virtually any measure.
(3) The duration of the marriage. The marriage lasted approximately fourteen years. This is a marriage of moderate-to-long duration, which ordinarily might weigh in favor of some maintenance. However, this factor must be considered in conjunction with all other relevant factors, including the parties' respective incomes and the existence of a prenuptial agreement.
(4) The age and health of the parties. Mr. Caldwell is 52 years old and Dr. Caldwell is 48 years old. Both parties are in good health. Neither party has any medical condition that impairs his or her ability to work.
(5) The present and future earning capacity of the parties. Dr. Caldwell's earning capacity is well-established and, if anything, continues to grow. Her practice expanded from one location to two in 2018, and its revenue has increased in each of the past three years. There is no reason to believe that her earning capacity will diminish in the foreseeable future. This factor weighs strongly against an award of temporary maintenance.
(6) The need for education or training to enable a party to become self-supporting. This factor is inapplicable. Dr. Caldwell holds a medical degree, is board-certified in a lucrative medical specialty, and is already entirely self-supporting through her existing practice. She requires no additional education, training, or transition period to achieve self-sufficiency.
(7) Any other factor which the court shall expressly find to be just and proper. The existence of a valid prenuptial agreement capping maintenance at $15,000 per month is a factor that the court should find just and proper to consider. The agreement reflects the parties' own assessment of what constitutes fair and adequate maintenance in the event of dissolution, made at a time when both parties had the benefit of independent legal advice and full financial disclosure.
Even under a purely statutory analysis that entirely disregards the prenuptial agreement, the overwhelming weight of the relevant factors counsels against any meaningful award of temporary maintenance. Dr. Caldwell's practice income of approximately $1.9 million per year is more than sufficient to enable her to meet her reasonable needs and maintain a comfortable lifestyle during the pendency of this action. She is a highly educated, professionally established, financially independent woman who requires no spousal subsidy to support herself.
The cases upon which Respondent may be expected to rely are distinguishable. The typical temporary maintenance case involves a non-monied or substantially lower-earning spouse — often a homemaker or part-time worker — who has limited independent resources and genuinely cannot meet basic needs without interim support. See, e.g., Prichep v. Prichep, 52 A.D.3d 61, 66-67 (2d Dep't 2008) (temporary maintenance appropriate where wife had limited income and husband's income was substantially greater). That is not this case. Dr. Caldwell is not a homemaker. She did not sacrifice her career during the marriage. She built a medical practice that now generates nearly $2 million per year. She is, in every meaningful sense, a "monied spouse" in her own right — simply one whose income is lower than that of her even-higher-earning husband.
The income gap between the parties, while real, does not create a need for temporary maintenance. Need is the touchstone of the temporary maintenance inquiry, and Respondent cannot demonstrate it. Her application for temporary spousal maintenance should be denied.
C. No Basis for Temporary Maintenance Exceeding the Prenuptial Cap. To the extent this Court considers any award of temporary maintenance — which Petitioner respectfully submits would be unwarranted — Petitioner urges the Court to limit any such award to the $15,000 per month cap established in the prenuptial agreement.
The prenuptial agreement's maintenance provisions were the product of arm's-length negotiation between two parties, each represented by independent and experienced matrimonial counsel. At the time the agreement was executed, both parties had the benefit of full financial disclosure. Both parties understood the terms to which they were agreeing. Both parties signed the agreement voluntarily and with the advice of counsel. The $15,000 monthly cap represents the parties' own carefully considered judgment as to what would constitute fair and adequate maintenance in the event of a dissolution following a marriage of ten or more years.
Any temporary maintenance award in excess of the prenuptial cap would undermine the parties' contractual bargain and effectively prejudge the enforceability challenge that Respondent has raised but has not yet litigated. As the First Department recognized in Gottlieb v. Gottlieb, 138 A.D.3d 30 (1st Dep't 2016), a court should not "render the agreement a nullity at the outset of litigation" by awarding temporary relief inconsistent with its terms. Rather, the agreement should be given effect pending a final determination of its enforceability. Id. at 37.
This principle applies with particular force here, where Respondent's challenges to the agreement are substantively weak and where her independent income is more than sufficient to meet her reasonable needs. Even if this Court were to conclude that some temporary maintenance is warranted — a conclusion Petitioner disputes — there is no justification for exceeding the $15,000 monthly cap. Doing so would grant Respondent more than she agreed to receive, impose on Petitioner more than he agreed to pay, and effectively reward Respondent for challenging an agreement that she has not yet shown to be unenforceable.
Moreover, the practical reality is that any temporary maintenance award will likely persist for the duration of this litigation, which could extend for a year or more. An overly generous temporary award would establish a baseline that would be difficult to reverse and would create a disincentive for Respondent to negotiate a reasonable resolution. The prenuptial cap provides a fair and reasonable limit that protects both parties' interests during the pendency of the action.
For all of these reasons, to the extent the Court awards any temporary maintenance, the award should not exceed $15,000 per month.
POINT II.
THE COURT SHOULD DENY RESPONDENT'S REQUEST FOR EXCLUSIVE USE AND OCCUPANCY OF THE MARITAL RESIDENCE
A. Respondent Voluntarily Vacated the Marital Residence. Respondent's application for exclusive use and occupancy of the marital residence at 14 Gramercy Park South, Apt. PH-A, New York, New York 10003, is fatally undermined by a single, dispositive fact: Dr. Caldwell voluntarily vacated the marital residence on April 3, 2022, more than two months before this action was commenced and approximately five months before the filing of the pending motion. She relocated to a separate apartment at 320 West 76th Street, Apt. 12B, New York, New York 10023, where she has resided continuously since her departure.
Dr. Caldwell's departure from the marital residence was entirely voluntary. It was not precipitated by any order of protection, any allegation of domestic violence, any act of physical or emotional intimidation, or any other exigent circumstance. No police report was filed. No complaint was made to any court or law enforcement agency. Dr. Caldwell simply chose, of her own accord, to leave the marital home and establish a separate residence elsewhere in Manhattan.
Under well-settled New York law, a party who voluntarily vacates the marital residence forfeits — or, at the very least, substantially diminishes — any claim to exclusive use and occupancy. Courts are deeply reluctant to grant exclusive occupancy motions that would displace a party who has remained in continuous possession of the marital home, particularly where the departing spouse left voluntarily rather than under compulsion, and particularly where the departing spouse has established adequate alternative housing. See Dushaj v. Dushaj, 158 A.D.3d 618, 619 (2d Dep't 2018) (denying exclusive occupancy where movant had voluntarily vacated and resided elsewhere); Ackermann v. Ackermann, 120 A.D.3d 1279 (2d Dep't 2014) (same); Mavroudis v. Mavroudis, 77 A.D.3d 921 (2d Dep't 2010) (voluntary departure from marital home weighs against exclusive occupancy).
The rationale for this rule is both practical and equitable. A spouse who voluntarily leaves the marital home has, by her own actions, demonstrated that she can live separately and does not require exclusive possession of the residence. To grant such a spouse's subsequent application for exclusive occupancy would reward strategic behavior, displace the party who has remained in the home and maintained it, and effectively allow the departing spouse to use the courts to regain a position she voluntarily abandoned.
Here, Dr. Caldwell left the marital home on April 3, 2022. She found and moved into a separate apartment. She has lived there for approximately five months. She has not alleged that her departure was involuntary or that she was forced out. Having chosen to leave, she cannot now seek to displace Mr. Caldwell from the home he has continuously occupied and maintained. Her application for exclusive use and occupancy should be denied on this basis alone.
B. The Residence Is Titled Solely in Petitioner's Name. The marital residence at 14 Gramercy Park South, Apt. PH-A, is titled solely in the name of Jonathan R. Caldwell. While Petitioner acknowledges that the residence was purchased during the marriage with marital funds in March 2010 at a purchase price of $6.9 million, and that the residence may therefore constitute marital property subject to equitable distribution, the fact of sole title in Petitioner's name is a relevant consideration in the exclusive occupancy analysis.
New York courts have recognized that title ownership, while not dispositive, is a factor that weighs against granting exclusive occupancy to a non-titled spouse — particularly where, as here, the titled spouse has remained in continuous possession and the non-titled spouse has voluntarily departed. See Kessler v. Kessler, 33 A.D.3d 42 (2d Dep't 2006) (considering title ownership as one factor in exclusive occupancy analysis). The titled spouse's property interest creates a presumptive right to continued possession that should not be lightly disturbed by interim court order.
Moreover, the prenuptial agreement specifically addresses the disposition of the marital residence upon dissolution. Article IX, Section 2 of the agreement provides that the marital residence is to be sold and the net proceeds divided 65% to the titled spouse (Mr. Caldwell) and 35% to the non-titled spouse (Dr. Caldwell). Article IX, Section 3 grants the titled spouse the right to elect to buy out the non-titled spouse's share at fair market value within ninety days of the entry of a final judgment of dissolution. These provisions contemplate that Mr. Caldwell will retain primary association with and control over the marital residence. They further contemplate that Mr. Caldwell may ultimately elect to retain the property by purchasing Dr. Caldwell's 35% share. Displacing Mr. Caldwell from the residence pendente lite would be inconsistent with these provisions and would undermine the parties' contractual expectations.
C. Respondent Has Adequate Alternative Housing. Even assuming arguendo that Dr. Caldwell's voluntary departure and the title issue were not, standing alone, sufficient to deny her application, she has failed to demonstrate any need for exclusive occupancy because she has adequate alternative housing.
Dr. Caldwell currently resides at 320 West 76th Street, Apt. 12B, New York, New York 10023 — a separate, established residence on the Upper West Side of Manhattan. She has lived at this address continuously since April 3, 2022. She has the financial means to maintain this residence comfortably given her practice's approximately $1.9 million in annual revenue. There is no indication that her current living situation is inadequate, unstable, or otherwise unsuitable.
Respondent may argue that exclusive occupancy is necessary for the welfare of the parties' children. This argument is without merit. Both children attend Lockwood Academy at 251 East 84th Street, New York, New York 10028. Lockwood Academy is accessible from both the marital residence at 14 Gramercy Park South (approximately a 20-minute commute by car or public transit) and from Dr. Caldwell's current residence at 320 West 76th Street (approximately a 15-minute commute). Neither residence is more convenient to the school than the other; if anything, Dr. Caldwell's current Upper West Side apartment is slightly closer. The children can maintain their school routines, extracurricular activities, and social connections from either location. There is simply no basis for the proposition that the children's welfare requires that Dr. Caldwell — who chose to leave the marital home — be awarded exclusive occupancy of it.
Furthermore, Mr. Caldwell has demonstrated his commitment to the children's welfare by maintaining the marital residence as a stable and comfortable home during his custodial time. He continues to pay the monthly mortgage, property taxes, insurance, and all carrying costs associated with the property. He has ensured that the children's rooms, belongings, and routines at the marital home remain undisturbed. There is no suggestion that the children are in any way disadvantaged by the current arrangement.
D. No Domestic Strife or Safety Concerns Warrant Exclusive Occupancy. The standard for exclusive use and occupancy of a marital residence under New York law requires a showing of "domestic strife so great as to render the continued cohabitation of the parties intolerable" or a demonstration that "the health and safety of the movant or the children would be endangered by continued cohabitation." See Minter v. Minter, 153 A.D.3d 765, 766 (2d Dep't 2017); Davis v. Davis, 138 A.D.3d 904, 906 (2d Dep't 2016). This is a high threshold, and it is one that Respondent cannot meet.
Respondent has not alleged domestic violence. She has not sought or obtained an order of protection. She has not filed any police report or made any complaint to law enforcement regarding Mr. Caldwell's conduct. She has not identified any safety concern — whether involving herself or the children — that would justify exclusive occupancy. In her moving papers, Respondent's sole basis for seeking exclusive occupancy appears to be her desire to return to the marital home and her assertion that it is the "family home" to which she and the children have an emotional attachment. While understandable as a personal preference, this falls far short of the legal standard.
Moreover, the predicate for an exclusive occupancy order — continued cohabitation that is intolerable or dangerous — is entirely absent in this case. The parties are not cohabiting. They have not cohabited since April 3, 2022. Dr. Caldwell left of her own accord and has lived separately for approximately five months. There is no cohabitation to render intolerable. There is no shared living space that poses a risk to either party's health or safety. The premise for the relief Dr. Caldwell seeks simply does not exist.
The cases in which New York courts have granted exclusive occupancy motions are readily distinguishable. Those cases typically involve situations where the parties continue to reside together in the marital home, where the atmosphere has become hostile, volatile, or dangerous, and where continued cohabitation poses a genuine risk to one or both parties or to the children. See, e.g., Marano v. Marano, 90 A.D.3d 1119, 1121 (3d Dep't 2011) (exclusive occupancy granted where parties continued to cohabit and husband's behavior created unsafe environment); Callirgos v. Callirgos, 178 A.D.3d 840 (2d Dep't 2019) (exclusive occupancy proper where domestic violence and orders of protection were present). None of those circumstances are present here. The parties are living separately. There is no domestic strife. There is no safety concern. There is no basis for exclusive occupancy.
For all of the foregoing reasons, Respondent's application for exclusive use and occupancy of the marital residence should be denied.
POINT III.
PETITIONER DOES NOT OPPOSE A REASONABLE AWARD OF TEMPORARY CHILD SUPPORT
Petitioner wishes to make clear to this Court that he does not oppose a reasonable award of temporary child support for the parties' two minor children, Sophia Caldwell (born February 12, 2012, currently age 10) and Alexander Caldwell (born August 29, 2014, currently age 8). Mr. Caldwell is a loving and devoted father who is fully committed to ensuring that his children's financial needs are met during the pendency of this action and beyond.
Under the Child Support Standards Act ("CSSA"), DRL § 240(1-b), child support is calculated based on the combined parental income of both parties, with the non-custodial parent's pro rata share applied to the statutory percentage applicable to two children (25% of combined parental income up to the statutory cap). Where, as here, the parties' combined income substantially exceeds the statutory income cap — which is currently $163,000 per year — the court has discretion to apply the statutory percentage to the amount of combined parental income above the cap, or to determine an appropriate award based on enumerated statutory factors.
Petitioner recognizes his obligation to contribute to the children's support during the pendency of this action. He has, in fact, continued to provide substantial financial support to the children since the parties' separation, including paying the mortgage and carrying costs on the marital residence (where the children reside during his custodial time), contributing to private school tuition at Lockwood Academy, and covering the children's extracurricular activities, medical expenses, and other day-to-day costs.
Mr. Caldwell is willing to continue contributing to the children's private school tuition at Lockwood Academy. Sophia's annual tuition is $58,500 and Alexander's annual tuition is $54,200, for a combined total of $112,700 per year. Mr. Caldwell is also willing to continue contributing to the children's extracurricular activities — which currently include piano lessons, soccer, and swimming — as well as to uninsured medical and dental expenses for both children. These contributions are consistent with the standard of living the children enjoyed during the marriage and reflect Mr. Caldwell's genuine commitment to their welfare.
Petitioner submits that a temporary child support award in the range consistent with statutory guidelines, based on the parties' respective incomes and the court's discretion for high-income earners, is appropriate. In exercising its discretion under the CSSA for combined parental income exceeding the statutory cap, this Court should consider the factors enumerated in DRL § 240(1-b)(f), including but not limited to:
(1) The financial resources of the custodial and non-custodial parent, and those of the children;
(2) The physical and emotional health of the children and their special needs or aptitudes;
(3) The standard of living the children would have enjoyed had the marriage not been dissolved;
(4) The tax consequences to the parties;
(5) The non-monetary contributions that the parents will make toward the care and well-being of the children;
(6) The educational needs of either parent;
(7) A determination that the gross income of one parent is substantially less than the other parent's gross income;
(8) The needs of the children, including their need to continue attending private school at Lockwood Academy, where they have been enrolled since kindergarten and where their academic and social lives are centered; and
(9) Any other factors the court determines are relevant in each case.
Given the parties' substantial combined income, the children's enrollment at a private school with annual tuition exceeding $112,000 combined, and the lifestyle the children have enjoyed, Petitioner anticipates that the Court will exercise its discretion to award child support above the statutory minimum. Mr. Caldwell does not seek to minimize his child support obligation; he seeks only to ensure that the award is reasonable, consistent with the CSSA framework, and reflective of both parents' financial contributions and responsibilities.
Petitioner respectfully requests that any temporary child support order specify the allocation of responsibility for private school tuition, extracurricular activities, and unreimbursed medical expenses so that both parties understand their respective obligations clearly during the pendency of the action.
CONCLUSION
For all of the foregoing reasons, Petitioner Jonathan R. Caldwell respectfully requests that this Court enter an order:
1. Denying Respondent's application for temporary spousal maintenance in its entirety, or, in the alternative, limiting any temporary maintenance award to no more than $15,000 per month, consistent with the parties' prenuptial agreement executed on June 7, 2008;
2. Denying Respondent's application for exclusive use and occupancy of the marital residence located at 14 Gramercy Park South, Apt. PH-A, New York, New York 10003; and
3. Entering an order for temporary child support for the parties' minor children, Sophia Caldwell and Alexander Caldwell, in a reasonable amount consistent with the Child Support Standards Act and the parties' respective financial circumstances, including appropriate provision for private school tuition at Lockwood Academy, extracurricular activities, and unreimbursed medical expenses.
Petitioner further requests such other and further relief as this Court deems just and proper.
Respectfully submitted,
CALDERWOOD & HARKNESS LLP
By: ________
Priya Anand, Esq. Attorneys for Petitioner Jonathan R. Caldwell
425 Lexington Avenue, 38th Floor New York, New York 10017 Telephone: (212) 558-4000 Facsimile: (212) 558-4001
Dated: September 15, 2022 New York, New York
CERTIFICATE OF SERVICE
I, Priya Anand, an attorney duly admitted to practice before the courts of the State of New York, hereby certify that on September 15, 2022, a true and correct copy of the foregoing Memorandum of Law in Opposition to Respondent's Motion for Pendente Lite Relief was served upon:
Rachel Whitford, Esq. Whitford Garza & Stein LLP 600 Third Avenue, 22nd Floor New York, New York 10016 Telephone: (212) 490-7200 Attorneys for Respondent Dr. Elena M. Caldwell
Service was made by the following methods: (1) electronic filing through the New York State Courts Electronic Filing System ("NYSCEF"), and (2) electronic mail to counsel's email address of record.
________________________________________
Priya Anand, Esq.
Dated: September 15, 2022 New York, New York
VERIFICATION
STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK )
Priya Anand, Esq., an attorney duly admitted to practice law in the State of New York, hereby affirms the following under the penalties of perjury:
I am a partner at Calderwood & Harkness LLP, 425 Lexington Avenue, 38th Floor, New York, New York 10017, attorneys of record for Petitioner Jonathan R. Caldwell in the above-captioned action. I make this verification on behalf of Petitioner because the factual allegations contained in the foregoing Memorandum of Law are based upon information and records in the files of this office and upon documents produced by the parties in this action.
The factual statements made in the foregoing Memorandum of Law are true and correct to the best of my knowledge, information, and belief, based upon my review of relevant documents, financial records, and information provided by my client, and I make this verification in good faith.
________________________________________
Priya Anand, Esq.
Dated: September 15, 2022 New York, New York
Page
PRELIMINARY STATEMENT | 3
STATEMENT OF FACTS | 5
A. The Marriage and Separation | 5
B. The Prenuptial Agreement | 7
C. Respondent's Financial Circumstances and Independent Income | 9
D. Petitioner's Financial Circumstances | 11
E. The Marital Residence | 13
ARGUMENT | 15
POINT I: THE COURT SHOULD DENY RESPONDENT'S REQUEST FOR TEMPORARY SPOUSAL MAINTENANCE | 15
A. The Prenuptial Agreement Governs and Limits Maintenance | 15
B. Respondent's Independent Income Eliminates the Need for Temporary Maintenance | 20
C. No Basis for Temporary Maintenance Exceeding the Prenuptial Cap | 24
POINT II: THE COURT SHOULD DENY RESPONDENT'S REQUEST FOR EXCLUSIVE USE AND OCCUPANCY OF THE MARITAL RESIDENCE | 27
A. Respondent Voluntarily Vacated the Marital Residence | 27
B. The Residence Is Titled Solely in Petitioner's Name | 29
C. Respondent Has Adequate Alternative Housing | 31
D. No Domestic Strife or Safety Concerns Warrant Exclusive Occupancy | 33
POINT III: PETITIONER DOES NOT OPPOSE A REASONABLE AWARD OF TEMPORARY CHILD SUPPORT | 35
CONCLUSION | 38

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK — MATRIMONIAL PART 7

JONATHAN R. CALDWELL,

MEMORANDUM OF LAW IN OPPOSITION TO RESPONDENT'S MOTION FOR PENDENTE LITE RELIEF

TABLE OF CONTENTS

PRELIMINARY STATEMENT

STATEMENT OF FACTS

ARGUMENT

POINT I.

THE COURT SHOULD DENY RESPONDENT'S REQUEST FOR TEMPORARY SPOUSAL MAINTENANCE

POINT II.

POINT III.

PETITIONER DOES NOT OPPOSE A REASONABLE AWARD OF TEMPORARY CHILD SUPPORT

CONCLUSION

CALDERWOOD & HARKNESS LLP

CERTIFICATE OF SERVICE

VERIFICATION

Record

Parties

Dates

Amounts