| Wald v Wald |
| 2007 NY Slip Op 07838 [44 AD3d 848] |
| October 16, 2007 |
| Appellate Division, Second Department |
| Heather Wald, Appellant, v Steven A. Wald et al.,Respondents. |
—[*1] Kenneth Koopersmith, LLC, Garden City, N.Y. (Glenn S. Koopersmith of counsel), forrespondents.
In an action for a divorce and ancillary relief, the plaintiff appeals from an order of theSupreme Court, Queens County (Fitzmaurice, J.), entered June 22, 2006, which denied hermotion, inter alia, for pendente lite child support, maintenance, and an interim attorney's fee.
Ordered that the order is modified, on the law and in the exercise of discretion, by (1)deleting the provision thereof denying that branch of the plaintiff's motion which was forpendente lite maintenance and child support, and substituting therefor a provision granting thatbranch of the motion to the extent of awarding her the sum of $1,750 per month in combinedmaintenance and child support pending trial of the action, over and above the $7,500disbursement ordered by the Supreme Court, Rockland County, in the guardianship proceedingentitled Matter of Wald, under index No. 5952/00, retroactive to February 9, 2006, and(2) deleting the provision thereof denying that branch of the plaintiff's motion which was for aninterim attorney's fee in the amount of $20,000 and substituting therefor a provision granting thatbranch of the motion; as so modified, the order is affirmed, with costs to the plaintiff.
The parties were married in 1989 and there are three minor children of the marriage. Prior toan accident in August 2000, as a result of which the defendant husband sustained severe braininjuries, he was a dentist earning over $400,000 per year. Following the accident, the husbandwas unable to continue in his dental practice. In December 2000 the Supreme Court, Rockland[*2]County (Weiner, J.), adjudicated the husband an incapacitatedperson and appointed the plaintiff wife as his guardian. In May 2003 the wife was removed asguardian and replaced by the current co-guardians.
In November 2003 the guardianship court ordered the wife to turn over to the co-guardiansall assets in which the husband had an interest, including all funds jointly held by the wife.Thereafter, during a hearing on March 8, 2004, the guardianship court directed the guardians tomake disbursements in the sum of $7,500 monthly from the guardianship fund to provide for theexpenses of the wife and children, without prejudice to the submission of support issues to thematrimonial court.
In August 2004, after receiving permission from the guardianship court, the wife commencedthe instant action for divorce and ancillary relief in the Supreme Court, Queens County. The wifethen moved in the matrimonial court, inter alia, for pendente lite relief. Citing the guardianshipcourt's monthly $7,500 disbursement to the wife, the Supreme Court denied that branch of thewife's motion. Under the circumstances of this case, that denial was an improvident exercise ofdiscretion. The wife is entitled to a pendente lite award of $1,750 per month in combinedmaintenance and child support, over and above the amount of the guardianship budget,retroactive to February 9, 2006, the date of the wife's order to show cause seeking such relief(see Bourne v Bourne, 237 AD2d 317, 318 [1997]; Bernstein v Bernstein, 143AD2d 168, 169-170 [1988]; see also Domestic Relations Law § 236 [B] [6] [a], [7][a]).
Pendente lite awards "should be an accommodation between the reasonable needs of themoving spouse and the financial ability of the other spouse . . . with due regard forthe preseparation standard of living" (Byer v Byer, 199 AD2d 298 [1993]; see Levakis v Levakis, 7 AD3d678 [2004]). A speedy trial is ordinarily the proper remedy to rectify a perceived inequity ina pendente lite award, though "the rule is not ironclad when the award is deficient" (Byer vByer, 199 AD2d 298 [1993], quoting Bernstein v Bernstein, 143 AD2d 168, 169[1988]). In such a case, this Court may substitute a discretionary determination for that of thetrial court (see Bourne v Bourne, 237 AD2d 317 [1997]; Bernstein v Bernstein,143 AD2d at 169).
Here, the Supreme Court denied that branch of the wife's motion which sought pendente litemaintenance and child support, finding that the $7,500 monthly disbursement from theguardianship funds was sufficient to meet the reasonable needs of the wife and children.Considering the substantial marital assets and the wife's monthly expenses, we disagree and findthe amount deficient to the extent indicated. Based on the husband's claimed expenses in hismost recent statement of net worth, the husband is possessed of sufficient income to provide theadditional support, despite his substantial medical expenses. This award covers all expenses ofthe wife and children pending trial of this matter.
The Supreme Court improvidently exercised its discretion in denying that branch of thewife's motion which was for an award of an interim attorney's fee. Domestic Relations Law§ 237 (a) provides that a court may award interim counsel fees to a spouse in a divorceaction should the award be required "to enable the petitioning party to properly proceed." Theprovision "is designed to redress the economic disparity between the monied spouse and thenon-monied spouse [so] that the matrimonial scales of justice are not unbalanced by the weightof the wealthier litigant's wallet" (O'Shea v O'Shea, 93 NY2d 187, 190 [1999]). The issueof counsel fees "although 'entrusted to [*3]the sound discretion ofthe trial court . . . is nonetheless controlled by the equities of the case and thefinancial circumstances of the parties' " (Lutz v Goldstone, 38 AD3d 720, 721 [2007], quoting Popelaski v Popelaski, 22 AD3d735, 738 [2005]). Here, the marital assets of the parties are held in the guardianship account,leaving the wife without sufficient funds to properly proceed in the divorce action. Further, theguardianship court authorized payment of a retainer to the husband's matrimonial counsel fromguardianship funds. Accordingly, the equities of the case warrant an award of an interimattorney's fee to the wife. She incurred reasonable legal fees in excess of the amount sought inher motion. Accordingly, that branch of her motion which was for an award of an interimattorney's fee in the sum of $20,000 is granted.
The wife's remaining contentions are without merit. Crane, J.P., Spolzino, Krausman andMcCarthy, JJ., concur.