| Horowitz v Horowitz |
| 2009 NY Slip Op 05292 [63 AD3d 1001] |
| June 23, 2009 |
| Appellate Division, Second Department |
| Natan E. Horowitz, Appellant, v Stacey Horowitz,Respondent. |
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In an action for a divorce and ancillary relief, the plaintiff husband appeals from an order ofthe Supreme Court, Nassau County (Jaeger, J.), dated April 30, 2008, which, inter alia, grantedthose branches of the defendant wife's motion which were to restrain his account at InteractiveBrokers, LLC, and to direct payment of the assets held in that account to her to the extent ofdirecting that Interactive Brokers, LLC, pay the sum of $20,000 from the subject account into theescrow account of the wife's attorney and that the wife's attorney pay the sum of $10,000 of that$20,000 to the wife, and, sua sponte, awarded the sum of $10,000 of the subject funds to thewife's attorney as an attorney's fee.
Ordered that notice of appeal from so much of the order as, sua sponte, awarded the sum of$10,000 of the subject funds to the wife's attorney as an attorney's fee is treated as an applicationfor leave to appeal from that portion of the order, and leave to appeal is granted (seeCPLR 5701 [a] [2]; [c]); and it is further,
Ordered that the order is modified, on the facts and in the exercise of discretion, (1) bydeleting the provision thereof, sua sponte, awarding the sum of $10,000 of the subject funds tothe wife's attorney as an attorney's fee, and (2) by deleting the provision thereof granting thatbranch of the wife's motion which was to direct the wife's attorney to pay her the sum of $10,000from the $20,000 paid by Interactive Brokers, LLC, into the escrow account maintained by thewife's attorney and substituting therefor a provision denying that branch of the wife's motion; asso modified, the order is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
While the Supreme Court may, in its discretion, award a party an attorney's fee during thependency of a matrimonial action (see Domestic Relations Law § 237 [a];Albert v Albert, 60 AD3d 979 [2009]), here, as far as the record shows, the courtawarded the wife's attorney a fee in the sum of $10,000 without an application from either thewife or her attorney, and without any supporting documentation or other evidence demonstratingthe propriety of such an award. Accordingly, under the circumstances presented, the award wasan improvident exercise of discretion.
Furthermore, the court erred in directing that the sum of $10,000 from the husband's [*2]account at Interactive Brokers, LLC, be paid to the wife followingits deposit into the escrow account of her attorney. The court indicated that this money was to bepaid as "past due maintenance" pursuant to a prior order of the court, and as a "temporarydistributive award." However, the record discloses that, in requesting the funds from the subjectbrokerage account, the wife was not seeking maintenance or a distributive award. Rather, shealleged that the husband had "fled the jurisdiction with the parties' children." She claimed that by"cut[ting] off" the husband's "supply of funds," the court might induce him to return to NewYork. Further, she alleged that, if the funds were in her possession, she would make sure theywere not "dissipated" and would be held for the benefit of the children. These concerns wereadequately addressed by the provisions of the order restraining the subject account and directingthat a portion of it be transferred to the escrow account of the wife's attorney.
The husband's remaining contentions are without merit. Rivera, J.P., Miller, Balkin andAustin, JJ., concur.