Dorothy M. Going, Garden City, NY, for appellant.
C. BALKIN, J.P. CHERYL E. CHAMBERS BETSY BARROS VALERIE
BRATHWAITE NELSON, JJ.
DECISION & ORDER
from an order of the Supreme Court, Suffolk County (Glenn A.
Murphy, J.), dated September 22, 2016. The order, insofar as
appealed from, granted the defendant's motion for
pendente lite relief to the extent of awarding her the sums
of only $150 per month in temporary maintenance, $1, 000 per
month in temporary child support, and $2, 500 in interim
that the order is affirmed insofar as appealed from, without
costs or disbursements.
plaintiff and the defendant were married in October 1997, and
have four children together. In April 2015, the plaintiff
commenced this action for a divorce and ancillary relief. The
defendant moved for pendente lite relief seeking, inter alia,
temporary maintenance in the sum of $3, 613.71, temporary
child support in the sum of $2, 613.89 per month, and an
award of interim counsel fees in the sum of $5, 000. In the
order appealed from, the Supreme Court, inter alia,
calculated the presumptive awards of temporary maintenance
and child support, but found that the presumptive awards
would be inappropriate in light of the fact that the
plaintiff had continued to maintain the marital residence,
the parties' vehicles, and insurance, and make all
payments relating to the children's healthcare.
Therefore, the court downwardly deviated from the presumptive
awards and awarded the defendant the sums of $1, 000 per
month in temporary child support and $150 per month in
temporary maintenance. The court also awarded the defendant
interim counsel fees, but only to the extent of awarding her
the sum of $2, 500. The defendant appeals, arguing, among
other things, that she is entitled to increased pendente lite
awards and counsel fees.
Relations Law § 236(B)(5-a)(c) sets forth formulas a
court must use to determine the presumptively correct amount
of temporary maintenance (see Goncalves v Goncalves,
105 A.D.3d 901, 902; Woodford v Woodford, 100 A.D.3d
875, 876-877). A court may deviate from the presumptive award
only where it finds that the presumptive award "is
unjust or inappropriate" (Domestic Relations Law §
236[B][5-a][h]). Under such circumstances, the court must
"set forth, in a written decision or on the record, the
guideline amount of temporary maintenance, the factors it
considered, and the reasons that the court adjusted the
guideline amount of temporary maintenance" (Domestic
Relations Law § 236[B][5-a][h]). Where the
court's award is in accordance with the statute,
"[m]odifications of pendente lite awards should rarely
be made by an appellate court and then only under exigent
circumstances, such as where a party is unable to meet his or
her financial obligations, or justice otherwise
requires" (Levakis v Levakis, 7 A.D.3d 678;
see Rosenstock v Rosenstock, 149 A.D.3d 887; Tzu
Ching Kao v Bonalle, 145 A.D.3d 703, 704; Su v
Su, 128 A.D.3d 949, 949-950; Malik v Malik, 66
formula to determine temporary spousal maintenance that is
outlined in Domestic Relations Law § 236(B)(5-a)(c) is
intended to cover all of a payee spouse's basic living
expenses, including housing costs, the costs of food and
clothing, and other usual expenses" (Vistocco v
Jardine, 116 A.D.3d 842, 843; see Su v Su, 128
A.D.3d at 950; Khaira v Khaira, 93 A.D.3d 194, 200).
Here, much of the defendant's basic living expenses that
would be included in the presumptive award of temporary
maintenance were already being paid by the plaintiff. Under
these circumstances, the Supreme Court did not improvidently
exercise its discretion in downwardly deviating from the
presumptive award of temporary maintenance. Moreover, the
defendant failed to demonstrate that the pendente lite
maintenance award has left her unable to meet her financial
obligations (see Su v Su, 128 A.D.3d at 950).
Supreme Court also did not improvidently exercise its
discretion in fixing the amount of temporary child support
(see generally Domestic Relations Law §
236[B]). Furthermore, any perceived inequities in pendente
lite support and maintenance can best be remedied by a speedy
trial, at which the parties' financial circumstances can
be fully explored (see Rosenstock v Rosenstock, 149
A.D.3d 887; Tzu Ching Kao v Bonalle, 145 A.D.3d at
704; Maksoud v Maksoud, 71 A.D.3d 643, 644).
award of interim counsel fees is a matter within the sound
discretion of the trial court, and the issue is controlled by
the equities and circumstances of each particular case
(see Domestic Relations Law § 237[a];
Vistocco v Jardine, 116 A.D.3d at 844; Prichep v
Prichep, 52 A.D.3d 61, 64). The Supreme Court did not
improvidently exercise its discretion in awarding the
defendant the sum of $2, 500 in counsel fees.
defendant's remaining contention is without merit.
BALKIN, J.P., CHAMBERS, BARROS and BRATHWAITE ...