| Silver v Silver |
| 2007 NY Slip Op 09763 [46 AD3d 667] |
| December 11, 2007 |
| Appellate Division, Second Department |
| Michele Silver, Respondent, v David Silver,Appellant. |
—[*1] Schlissel, Ostrow, Karabatos & Poepplein, PLLC, Garden City, N.Y. (Lisa R. Schoenfeldand Michael J. Ostrow of counsel), for respondent.
In an action for a divorce and ancillary relief, the husband appeals, as limited by his brief,from so much of an amended order of the Supreme Court, Nassau County (Sher, J.), enteredDecember 6, 2006, as granted the wife's motion for an award of certain pendente lite relief, to theextent of directing him to pay the wife, pendente lite, maintenance in the sum of $1,700 permonth, child support in the sum of $2,500 per month, certain carrying charges and expenses, andinterim counsel fees in the sum of $10,000.
Ordered that the amended order is modified, on the law, on the facts, and in the exercise ofdiscretion, by deleting the provisions thereof directing the husband to pay, pendente lite,maintenance in the sum of $1,700 per month, child support in the sum of $2,500 per month, andinterim counsel fees the sum of $10,000, and substituting therefor provisions directing thehusband to pay, pendente lite, maintenance in the sum of $650 per month, child support in thesum of $950 per month, and interim counsel fees in the sum of $3,672; as so modified, theamended order is affirmed insofar as appealed from, without costs or disbursements.
The parties were married in June 1988 and there are three children of the marriage. Thehusband is a urological surgeon and the wife owns a part-time photography business. In March2006 the wife commenced this action for a divorce and ancillary relief. The wife then moved foromnibus pendente lite relief, seeking, inter alia, maintenance, child support, the payment ofcertain [*2]carrying charges, tuition, and counsel fees. TheSupreme Court granted her motion to the extent of directing the husband to pay her, pendentelite, (1) the sum of $1,700 per month for maintenance, (2) the sum of $2,500 per month for childsupport, (3) carrying charges for the marital residence, (4) the wife's expenses for automotiverepairs, (5) certain unreimbursed medical expenses, (6) private school tuition for the children,and (7) the sum of $10,000 for the wife's interim counsel fees, and to maintain life, auto, andmedical insurance on behalf of the wife and the children. The husband appeals and we modify.
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" (Levakis v Levakis, 7 AD3d 678 [2004]; see Byer v Byer,199 AD2d 298 [1993]). "Modifications of pendente lite awards should rarely be made by anappellate court and then only under exigent circumstances" (Fruchter v Fruchter, 29 AD3d 942, 944 [2006]). A speedy trial isordinarily the proper remedy to rectify a perceived inequity in a pendente lite award (see Byerv Byer, 199 AD2d 298 [1993]). However, "[w]hen the support payments directed by thecourt are so prohibitive as to strip the payor spouse of the income and the ability to meet his orher allowable expenses, then relief may be granted in the interest of justice" (Fruchter vFruchter, 29 AD3d at 944; seeMiller v Miller, 24 AD3d 521 [2005]; Ryder v Ryder, 267 AD2d 447 [1999];Fascaldi v Fascaldi, 186 AD2d 532 [1992]).
The Supreme Court providently exercised its discretion in directing the husband to paycertain specific expenses associated with the marital residence and automotive repairs. However,considering the significant carrying charges the husband was directed to pay, the amount oftemporary maintenance and support must be reduced. In determining the ability of the husband toprovide support, the Supreme Court failed to take into account his actual reasonable livingexpenses, as well as his current debts and whether they were reasonably incurred (seeHirschman v Hirschman, 156 AD2d 644 [1989]). Since payment of the sums awarded wouldnot leave the husband with sufficient funds to cover his reasonable expenses and student loanobligation, we modify the order to direct the husband to pay the wife temporary maintenance inthe sum of $650 per month and temporary child support in the sum of $950 per month (seeFruchter v Fruchter, 29 AD3d at 944; Miller v Miller, 24 AD3d 521 [2005]; Ryder v Ryder, 267AD2d 447 [1999]; Fascaldi v Fascaldi, 186 AD2d 532 [1992]).
As a general rule, we do not consider an issue raised on a subsequent appeal that was raisedon a prior appeal or could have been raised on a prior appeal which was dismissed for lack ofprosecution, although the Court has the inherent jurisdiction to do (see Faricelli v TSSSeedman's, 94 NY2d 772, 774 [1999]; Bray v Cox, 38 NY2d 350, 353 [1976]).Although we thus need not consider the husband's arguments concerning the children's tuition forthe 2006-2007 school year, since he failed to perfect an appeal from a prior order directing him topay such tuition, and that appeal was consequently dismissed as abandoned, the Supreme Courtproperly directed him to pay the children's tuition pending trial in any event (seeDomestic Relations Law § 240 [1-b] [c] [7]; Matter of Holliday v Holliday, 35 AD3d 468 [2006]; Manno vManno, 196 AD2d 488, 491 [1993]).
Although the issue of counsel fees is entrusted to the sound discretion of the trial court, it isnonetheless controlled by the equities of the case and the financial circumstances of the parties(see Domestic Relations Law § 237; Lutz v Goldstone, 38 AD3d 720 [2007]; Popelaski v Popelaski, 22 AD3d735 [2005]). The Supreme Court's award of the sum of $10,000 to the wife for interimcounsel fees was an improvident exercise of its discretion given that the wife had already paidthat amount out of the marital funds before her access to those funds was denied by the husband.In consideration of all the relevant factors (see Domestic Relations Law § 237 [a],[d]), we reduce the award of [*3]counsel fees to the sum of$3,672, the amount remaining due at the time of the wife's motion for pendente lite relief (see Daniel v Friedman, 22 AD3d707, 709 [2005]; Davidman v Davidman, 175 AD2d 232, 233 [1991]). Schmidt,J.P., Skelos, Covello and Balkin, JJ., concur.