| Penavic v Penavic |
| 2009 NY Slip Op 02578 [60 AD3d 1026] |
| March 31, 2009 |
| Appellate Division, Second Department |
| Silvana Penavic, Appellant, v Kresimir Penavic,Respondent. |
—[*1] Schlissel, Ostrow, Karabatos & Poepplein, PLLC, Garden City, N.Y. (Glen S. Koopersmith,Stephen W. Schlissel, and A.J. Temsamani of counsel), for respondent.
In an action for a divorce and ancillary relief, the plaintiff wife appeals, as limited by herbrief, from so much of an order of the Supreme Court, Suffolk County (Bivona, J.), dated March12, 2008, as denied those branches of her motion which were for an upward modification ofpendente lite maintenance and child support, and payment of her property taxes by the defendanthusband, and referred that branch of her motion which was for an award of interim counsel feesin the sum of $250,000 to the trial court.
Ordered that the order is modified, on the facts and in the exercise of discretion, by deletingthe provision thereof referring that branch of the motion which was for an award of interimcounsel fees in the sum of $250,000 to the trial court and substituting therefor a provisiongranting that branch of the motion to the extent of awarding the wife interim counsel fees in thesum of $100,000 without prejudice to future applications; as so modified, the order is affirmedinsofar as appealed from, without costs or disbursements.
The plaintiff wife and the defendant husband were married on November 25, 1989, and havefour minor children. Although they both obtained graduate degrees, the wife left the work forcein [*2]the 1990s to become primarily a homemaker and parent totheir infant children. The husband's income in the hedge fund business grew steadily and was inexcess of $1 million per year as of 1998, permitting the family to enjoy a lavish lifestyle thatincluded au pairs, housekeepers, and luxury trips abroad.
The wife commenced the instant action for divorce against the husband in 2003. In 2006, thehusband provided funds for the purchase of a separate residence for the wife worthapproximately $1 million, and the parties stipulated that the husband would pay pendente litemaintenance and child support totaling $12,000 per month, health care costs for the family,educational and extracurricular costs for the children, and a one-year payment of $25,000 intravel costs for the wife. The husband also advanced the wife $250,000 from her equitabledistribution. It is undisputed that he was able to make these payments since he had an adjustedgross income at the time of over $2.7 million per year.
By 2007, the wife lacked the funds to pay for certain home repairs and her property taxes;she also owed her lawyer substantial fees. As a result, the wife moved, inter alia, for an upwardmodification of pendente lite maintenance and child support, and an award of an interim counselfee in the sum of $250,000. The Supreme Court denied the branches of the motion concerningpendente lite mainteannce and child support, and referred the wife's request for interim counselfees to the trial court.
The Supreme Court properly denied that branch of the wife's motion which was for anupward modification of pendente lite maintenance and child support, as she failed to establish asubstantial change in circumstances (see Domestic Relations Law § 236 [B] [9][b]; Gillings v Gillings, 56 AD3d 424 [2008]). "[T]he best remedy for any perceivedinequities in the pendente lite award is a speedy trial, at which the disputed issues concerning theparties' financial capacity and circumstances can be fully explored" (Gillings v Gillings,56 AD3d at 424; see Wald v Wald, 44 AD3d 848, 849-850 [2007]; Gitter vGitter, 208 AD2d 895 [1994]).
However, the Supreme Court improperly referred the wife's request for interim counsel feesto the trial court (see Domestic Relations Law § 237 [a]; O'Shea v O'Shea,93 NY2d 187, 190 [1999]; Prichep v Prichep, 52 AD3d 61, 65 [2008]; Wald vWald, 44 AD3d at 850). "[A]n award of interim counsel fees to the nonmonied spouse willgenerally be warranted where there is a significant disparity in the financial circumstances of theparties. Accordingly, courts should not defer requests for interim counsel fees to the trial court,and should normally exercise their discretion to grant such a request made by the nonmoniedspouse, in the absence of good cause" (Prichep v Prichep, 52 AD3d at 65 [citationomitted]; see Lutz v Goldstone, 38 AD3d 720, 721 [2007]; Popelaski v Popelaski,22 AD3d 735, 738 [2005]).
Contrary to the Supreme Court's assertion that each of the parties possesses ample assets tocover his or her own counsel fees, the wife is currently unemployed outside the home, being aparent to their children and a homemaker, who has no independent source of income. On theother hand, the husband is an extremely successful executive, who enjoyed an adjusted grossincome of more than $2.7 million in 2006, and is capable of " ' "wearing down or financiallypunishing the opposition by recalcitrance, or by prolonging the litigation" ' " (Prichep vPrichep, 52 AD3d at 65, quoting Gober v Gober, 282 AD2d 392, 393 [2001]; seeLevy v Levy, 4 AD3d 398 [2004]).
"Where the parties' respective financial positions give one a distinct advantage over the[*3]other, the court may direct the monied spouse to pay counselfees" (Kaplan v Kaplan, 28 AD3d 523, 523 [2006]; see Peritore v Peritore, 50AD3d 874, 875 [2008]; Sterling v Sterling, 303 AD2d 290 [2003]). Accordingly, thewife is entitled to an award of interim counsel fees in the amount of $100,000, payable by thehusband, for services rendered and anticipated from July 2006. This award is without prejudiceto any future application by the wife for additional counsel fees (see Wechsler v Wechsler,19 AD3d 157, 158 [2005]; Block v Block, 245 AD2d 153 [1997]).
The wife's remaining contention is without merit. Skelos, J.P., Fisher, Santucci and Balkin,JJ., concur.