MATRIMONIAL ACTIONS - APPEAL OF PENDANTE LITE ORDER

A recent issue and it comes up often in matrimonial actions: an action for divorce is started and the parties seek temporary relief immediately, i.e., custody, visitation, maintenance, support, legal fees, health insurance, etc. What if one party is not happy with the temporary order? Here is a recent case from the Second Department (which covers Nassau):

"SINANIS v. SINANIS, 2008-10966 [2d Dept 11-10-2009]2009 NY Slip Op 08210, Appellate Division of the Supreme Court of New York, Second Department. Decided on November 10,2009.

In an action for a divorce and ancillary relief, the defendant
appeals (1), as limited by his notice of appeal and his brief, from
stated portions of an order of the Supreme Court, Westchester County
(Tolbert, J.), entered November 14, 2008, which, inter alia, granted
that branch of his motion which was for a downward modification of
pendente lite child support only to the extent of reducing his
support obligation from $1,200 per week to $700 per week retroactive
to September 1, 2008, and directed him to pay the
plaintiff's attorneys an interim counsel fee in the sum of
$10,000, and (2) from stated portions of an order of the same court
entered March 5, 2009, which, inter alia, upon reargument, adhered
to the prior determination granting that branch of his motion which
was for a downward modification of pendente lite child support only
to the extent of reducing his support obligation from $1,200 per
week to $700 per week, retroactive to September 1, 2008, and
directing him to pay the plaintiff's attorneys interim counsel fees
in the sums of $10,000 and $15,000, and directed him to deposit
marital funds in the sum of $139,000 in escrow.

ORDERED that the appeal from the order
entered November 14, 2008, is dismissed, as the portions of
that order appealed from were superseded by the order
entered March 5, 2009, made upon reargument; and it is further,

ORDERED that the order entered March 5, 2009, is affirmed insofar
as appealed from; and it is further,
Page 2

ORDERED that one bill of costs is awarded to the plaintiff.

Maniatis Dimopoulos & Lombardi, LLP, Scarsdale, N.Y.
(Constantine G. Dimopoulos of counsel), for appellant.

Fuchs & Eichen, Harrison, N.Y. (Charna L. Fuchs of counsel), for
respondent.

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, RANDALL T. ENG, JOHN M.
LEVENTHAL, JJ.

DECISION & ORDER

The defendant seeks further modification of his pendente lite
child support obligation, which the Supreme Court reduced from the
sum of $1,200 per week to the sum of $700 per week. However,
"[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" (Barone v Barone, 41 AD3d 623, 624;
see McGarrity v McGarrity, 49 AD3d 824, 825; Zheng v
Pan, 23 AD3d 378, 379). Here, the record indicates that in
addition to his salary of approximately $187,000 per year, the
defendant has sufficient resources available to pay child support in
the sum of $700 per week as well as the carrying charges for the
marital residence in accordance with the modified pendente lite
order, and he has not demonstrated that such payments will leave him
unable to meet his own financial obligations (see Ruane v
Ruane, 55 AD3d 586, 588; Krigsman v Krigsman,
288 AD2d 189, 191; see also Zheng v Pan, 23 AD3d at 379).
Accordingly, any perceived inequities in the pendente lite award can
be best remedied by a speedy trial, at which the parties' financial
circumstances can be fully explored (see Swickle v Swickle,
47 AD3d 704, 705; Stubbs v Stubbs, 41 AD3d at 833; Barone v
Barone, 41 AD3d at 624).

Contrary to the defendant's contention, the court properly made
the downward modification of his pendente lite child support
retroactive only to the approximate date upon which his application
for a downward modification was made
(see Rosenberg v Rosenberg, 215 AD2d 365, 366), rather than
from the date upon which the plaintiff's initial application for
pendente lite child support was made. "While a party in a
matrimonial action may request the downward modification of a
temporary child support award when that party can demonstrate
financial hardship, such a downward modification may operate only
prospectively" (Fruchter v Fruchter, 29 AD3d 942, 944; see
Shapiro v Shapiro, 35 AD3d 585, 587; Petek v Petek,
239 AD2d 327, 328).

In view of the disparity in the parties' financial circumstances,
the court properly directed the defendant to pay interim counsel
fees totaling $25,000 (see Lauria v Usak-Lauria,
65 AD3d 1017; Mueller v Mueller, 61 AD3d 652, 654; Mbanefo v
Mbanefo, 60 AD3d 648, 649; Stubbs v Stubbs, 41 AD3d at 833).
Furthermore, under the circumstances of this case, the court
properly directed that payment of interim counsel fees be made from
either the defendant's income or separate property.

Finally, the court providently exercised its discretion in
directing the defendant to deposit marital funds in the sum of
$139,000 in escrow to protect the plaintiff's right to equitable
distribution (see DiSanto v DiSanto, 279 AD2d 603).

MASTRO, J.P., BALKIN, ENG and LEVENTHAL, JJ., concur."

It is clear to me that the motion for relief pendente lite is of extreme importance and a lot of work and time and detail should be put into it, with the unfortunate effect of extremely high legal fees. It also appears to me that when there is a huge fight over the pendente lite order, it is likely that the action will continue to be quite litigious and expensive.