| McGarrity v McGarrity |
| 2008 NY Slip Op 02800 [49 AD3d 824] |
| March 25, 2008 |
| Appellate Division, Second Department |
| John B. McGarrity, Respondent, v Debra McGarrity,Appellant. |
—[*1] Wurman & Hornberger, P.C., Patchogue, N.Y. (Robert E. Hornberger of counsel), forrespondent.
In an action for a divorce and ancillary relief, the wife appeals, as limited by her brief, fromso much of an order of the Supreme Court, Suffolk County (Kent, J.), dated October 30, 2006, asgranted that branch of her motion which was for an award of pendente lite maintenance to theextent of awarding her the sum of only $200 per week and denied those branches of her motionwhich were for awards of a forensic accountant's fee and an interim attorney's fee in the sum of$25,000.
Ordered that the order is modified, on the law, the facts, and in the exercise of discretion, bydeleting the provisions thereof denying those branches of the wife's motion which were forawards of a forensic accountant's fee and an interim attorney's fee in the sum of $25,000 andsubstituting therefor provisions granting those branches of the wife's motion to the extent ofawarding her a forensic accountant's fee in the sum of $10,000 and an interim attorney's fee in thesum of $3,000, and otherwise denying those branches of the motion; as so modified, the order isaffirmed insofar as appealed from, without costs or disbursements.
The parties began living together in 1990 and were married in April 1996. There are nochildren of the marriage. While living together, but prior to their marriage, the husband acquiredhis business interest, Commercial Roof Services. The wife alleges that she contributed her directand indirect efforts to the business. In the beginning years of the business, she sent out mailings,answered the phones, kept appointments and records, and did clerical work, until a professionalstaff was hired. Following the marriage, however, the wife became a full-time wife, homemaker,and [*2]parent to the children of their prior marriages, totallydependent on the husband's business income and earnings for support.
In July 2006 the husband commenced this action for a divorce and ancillary relief against thewife. The wife moved for pendente lite relief, seeking, inter alia, maintenance, the payment ofcertain carrying charges, a forensic accountant's fee, and an interim attorney's fee in the sum of$25,000. The Supreme Court, inter alia, directed the husband to pay her, pendente lite, the sum of$200 per week for maintenance, the carrying charges for the marital residence, automotive useand repairs, and to maintain life and medical insurance on her behalf, but denied those branchesof her motion which were for awards of a forensic accountant's fee and an interim attorney's feein the sum of $25,000.
"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' " (Silver v Silver, 46 AD3d 667, 668 [2007], quoting Levakis v Levakis, 7 AD3d 678[2004]; see Albanese v Albanese, 234 AD2d 489, 490 [1996]; Byer v Byer, 199AD2d 298 [1993]). " 'Modifications of pendente lite awards should rarely be made by anappellate court and then only under exigent circumstances' " (Silver v Silver, 46 AD3d at668, quoting Fruchter v Fruchter, 29AD3d 942, 944 [2006]; see Brooksv Brooks, 30 AD3d 363, 364 [2006]), such as where a party is unable to meet his or herown financial obligations or where justice otherwise requires a modification (see Barone v Barone, 41 AD3d623, 623-624 [2007]; see alsoBiggio v Biggio, 21 AD3d 919 [2005]; Bogannam v Bogannam, 20 AD3d 442 [2005]).
Here, the wife failed to establish the existence of exigent circumstances sufficient to warranta modification of the pendente lite maintenance award, given the husband's payment of all thecarrying charges and other miscellaneous expenses (see Cooper v Cooper, 7 AD3d 746, 747 [2004]; Pezza vPezza, 300 AD2d 555, 556 [2002]). However, the wife sufficiently demonstrated thatgranting those branches of her motion which were for awards of a forensic accountant's fee andan interim attorney's fee was warranted pursuant to Domestic Relations Law § 237 (d) (see Cooper v Cooper, 32 AD3d376, 377 [2006]; Beige v Beige, 226 AD2d 412, 413 [1996]; Zahr v Zahr,149 AD2d 504, 505 [1989]). The Supreme Court improvidently declined to award a fee for aforensic accountant to appraise the husband's ongoing commercial roof business, whichsupported the parties' comfortable lifestyle during their 10 years of marriage, and their disputedcontentions regarding the wife's contributions to the business and its current financial viability.As such, the wife was entitled to an award of a forensic accountant's fee of $10,000 at this time(see Iannone v Iannone, 31 AD3d713, 715 [2006]; Beige v Beige, 226 AD2d at 413-414; Billington vBillington, 111 AD2d 203, 204 [1985]).
Furthermore, the Supreme Court should have granted that branch of the wife's motion whichwas for an award of an interim attorney's fee in the sum of $25,000 to the extent of awarding heran interim attorney's fee in the sum of $3,000, given the disparity of the parties' financialcircumstances and the wife's lack of independent funds (see Stubbs v Stubbs, 41 AD3d 832, 833 [2007]; Assini v Assini, 11 AD3d 417,419 [2004]; Celauro v Celauro, 257 AD2d 588, 589 [1999]). It is undisputed that thewife used marital funds to pay the initial $7,500 of her interim counsel fees, before her access tosuch funds was denied by the husband. In consideration of all the relevant factors (seeDomestic Relations Law § 237 [a], [d]), an interim attorney's fee award in the sum of$3,000, the amount remaining due at the time of the wife's motion for pendente lite relief, isappropriate (see Silver v Silver, 46 AD3d at 669; Davidman v Davidman, 175AD2d 232, 233 [1991]).[*3]
The wife's remaining contention is without merit. Skelos,J.P., Lifson, Santucci and Balkin, JJ., concur.