| Xiaokang Xu v Xiaoling Shirley He |
| 2010 NY Slip Op 07432 [77 AD3d 1083] |
| October 21, 2010 |
| Appellate Division, Third Department |
| Xiaokang Xu, Respondent, v Xiaoling Shirley He,Appellant. |
—[*1] Wayne P. Smith, Schenectady, for respondent.
Mercure, J.P. Appeal from an order and judgment of the Supreme Court (Drago, J.), enteredNovember 19, 2008 in Schenectady County, which granted plaintiff's cross motion for, amongother things, an award of counsel fees.
The underlying facts of this matter are more fully set forth in our prior decision affirming a2005 Supreme Court judgment granting plaintiff a divorce on the basis of cruel and inhumantreatment, and ordering equitable distribution of the parties' property (Xiaokang Xu v Xiaoling Shirley He, 24AD3d 862 [2005], lv denied 6 NY3d 710 [2006]). As relevant here, Supreme Court(Eidens, J.) initially directed plaintiff to pay defendant $1,000 per month in maintenance for aperiod of three years, and ordered the prompt sale of the marital residence. Due to plaintiff'sexpenditure of marital funds without defendant's consent, the court denied plaintiff's request toreceive a credit for his payment of the carrying charges on the marital residence. Thereafter,Supreme Court (Drago, J.) granted defendant's motion to stay enforcement of the judgment ofdivorce pending appeal, and ordered plaintiff to pay all carrying charges of the marital residencein lieu of $1,000 monthly maintenance.
Following affirmance of the judgment of divorce by this Court and denial of leave to appealby the Court of Appeals, plaintiff began making monthly maintenance payments to defendant inaddition to continuing to pay carrying charges on the marital residence until its sale in October2007. In the meantime, defendant continued to occupy the residence and thwarted [*2]real estate brokers' efforts to sell the property, resulting in hereviction pursuant to a January 2007 order. In a separate, March 2007 order, Supreme Courtfurther directed that plaintiff be credited with all carrying charges for the former maritalresidence for any month during which he also paid maintenance to defendant. Defendantindicates that she filed a notice of appeal from the order of eviction but failed to perfect herappeal.
In January 2008, defendant moved for an extension and upward modification of plaintiff'smaintenance obligation, and an order directing plaintiff to pay defendant her share of theequitable distribution of the marital property, as well as $25,000 in counsel fees. Plaintiffcross-moved for, among other things, a money judgment in the amount of approximately $72,000plus interest for the carrying charges on the former marital residence from the time of the divorceuntil sale. Supreme Court denied defendant's motions and, after a hearing, entered judgmentagainst defendant in the amount of $130.54. Noting that defendant's repeated "defiance in abidingby court orders ha[d] resulted in [plaintiff] expending a tremendous amount of money postjudgment," the court further awarded plaintiff approximately $15,000 for counsel fees. Defendantappeals and we now modify.
Initially, we agree with defendant that Supreme Court erred in awarding plaintiff a credit forthe carrying charges on the marital residence prior to resolution of defendant's appeal. For thefirst five months—before the court issued a stay on May 18, 2005—plaintiff wasobligated to pay those charges pursuant to the equitable distribution provisions of the judgmentof divorce. Granting a credit for that time period was essentially an impermissible modificationof equitable distribution (see McAuliffev McAuliffe, 70 AD3d 1129, 1135-1136 [2010]; Welsh v Lawler, 282 AD2d977, 979 [2001]). Thereafter, pursuant to the order staying enforcement of the divorce judgmentpending appeal, plaintiff was directed "to pay all the carrying charges of the marital residencein lieu of . . . monthly maintenance" (emphasis added). The carrying chargespaid while the appeal was pending were thus akin to maintenance (see Schieck v Schieck,138 AD2d 688, 690 [1988]),[FN*]and "restitution or recoupment of support overpayments is generally against public policy, exceptunder special circumstances" (Holmes vHolmes, 55 AD3d 1021, 1021-1022 [2008]; see Rosenberg v Sack, 46 AD3d 1273, 1274 [2007], lvdismissed 10 NY3d 800 [2008]; Du Jack v Du Jack, 243 AD2d 908, 909 [1997]).Thus, Supreme Court improperly awarded plaintiff a credit of $32,366.26 for carrying chargespaid from the time of the divorce in January 2005, until completion of the appellate process inMarch 2006.
We reach a different result, however, with respect to the award of counsel fees and a creditfor carrying charges paid after the appeal process was complete. Supreme Court properlyconsidered "defendant's dilatory and obstructionist tactics as a basis for an . . .award of counsel fees," and we perceive no abuse of discretion in that regard (Markov vMarkov, 304 AD2d 879, 880 [2003]; see Yarinsky v Yarinsky, 25 AD3d 1042, 1043 [2006]). Indeed, asnoted above, defendant refused to cooperate in the sale of the marital residence following herunsuccessful appeal, and she repeatedly defied court orders. This conduct led to both her ultimateeviction and an order crediting plaintiff with all carrying charges for any month during which healso paid maintenance to defendant—i.e., subsequent to the conclusion of the appellateprocess. Under [*3]these circumstances, and given defendant'sfailure to appeal the order awarding plaintiff a credit for carrying charges paid beginning in April2006, Supreme Court properly concluded that plaintiff was entitled to a credit for both counselfees and carrying charges paid after completion of the appellate process (see Holmes vHolmes, 55 AD3d at 1021).
Defendant's remaining arguments have been considered and found to be lacking in merit.
Malone Jr., McCarthy, Garry and Egan Jr., JJ., concur. Ordered that the order and judgmentis modified, on the law, without costs, by reversing so much thereof as granted plaintiff's crossmotion for a credit for carrying charges on the marital residence expended from January 2005through March 2006 in the amount of $32,366.26; cross motion denied to that extent; and, as somodified, affirmed.
Footnote *: While the carrying charges wereinitially addressed by Supreme Court in distributing the parties' marital property, the court treatedthose charges as support payments once it imposed the stay.