| Sinanis v Sinanis |
| 2009 NY Slip Op 08210 [67 AD3d 773] |
| November 10, 2009 |
| Appellate Division, Second Department |
| Doreen E. Sinanis, Respondent, v Spiro Sinanis,Appellant. (And Another Action.) |
—[*1] Fuchs & Eichen, Harrison, N.Y. (Charna L. Fuchs of counsel), for respondent.
In an action for a divorce and ancillary relief, the defendant appeals (1), as limited by hisnotice of appeal and his brief, from stated portions of an order of the Supreme Court,Westchester County (Tolbert, J.), entered November 14, 2008, which, inter alia, granted thatbranch of his motion which was for a downward modification of pendente lite child support onlyto the extent of reducing his support obligation from $1,200 per week to $700 per weekretroactive to September 1, 2008, and directed him to pay the plaintiff's attorneys an interimcounsel fee in the sum of $10,000, and (2) from stated portions of an order of the same courtentered March 5, 2009, which, inter alia, upon reargument, adhered to the prior determinationgranting that branch of his motion which was for a downward modification of pendente lite childsupport only to the extent of reducing his support obligation from $1,200 per week to $700 perweek, retroactive to September 1, 2008, and directing him to pay the plaintiff's attorneys interimcounsel fees in the sums of $10,000 and $15,000, and directed him to deposit marital funds in thesum of $139,000 in escrow.
Ordered that the appeal from the order entered November 14, 2008, is dismissed, as theportions of that order appealed from were superseded by the order entered March 5, 2009, madeupon reargument; and it is further,
Ordered that the order entered March 5, 2009, is affirmed insofar as appealed from; and it isfurther,[*2]
Ordered that one bill of costs is awarded to the plaintiff.
The defendant seeks further modification of his pendente lite child support obligation, whichthe Supreme Court reduced from the sum of $1,200 per week to the sum of $700 per week.However, "[m]odifications of pendente lite awards should rarely be made by an appellate courtand then only under exigent circumstances, such as where a party is unable to meet his or herfinancial obligations or justice otherwise requires" (Barone v Barone, 41 AD3d 623, 623-624 [2007]; see McGarrity v McGarrity, 49 AD3d824, 825 [2008]; Zheng v Pan,23 AD3d 378, 379 [2005]). Here, the record indicates that in addition to his salary ofapproximately $187,000 per year, the defendant has sufficient resources available to pay childsupport in the sum of $700 per week as well as the carrying charges for the marital residence inaccordance with the modified pendente lite order, and he has not demonstrated that suchpayments will leave him unable to meet his own financial obligations (see Ruane v Ruane, 55 AD3d 586,588 [2008]; Krigsman v Krigsman, 288 AD2d 189, 191 [2001]; see also Zheng vPan, 23 AD3d at 379). Accordingly, any perceived inequities in the pendente lite award canbe best remedied by a speedy trial, at which the parties' financial circumstances can be fullyexplored (see Swickle v Swickle,47 AD3d 704, 705 [2008]; Stubbs vStubbs, 41 AD3d 832, 833; Barone v Barone, 41 AD3d at 624).
Contrary to the defendant's contention, the court properly made the downward modificationof his pendente lite child support retroactive only to the approximate date upon which hisapplication for a downward modification was made (see Rosenberg v Rosenberg, 215AD2d 365, 366 [1995]), rather than from the date upon which the plaintiff's initial applicationfor pendente lite child support was made. "While a party in a matrimonial action may request thedownward modification of a temporary child support award when that party can demonstratefinancial hardship, such a downward modification may operate only prospectively" (Fruchter v Fruchter, 29 AD3d942, 944 [2006]; see Shapiro vShapiro, 35 AD3d 585, 587 [2006]; Petek v Petek, 239 AD2d 327, 328 [1997]).
In view of the disparity in the parties' financial circumstances, the court properly directed thedefendant to pay interim counsel fees totaling $25,000 (see Lauria v Usak-Lauria, 65 AD3d 1017 [2009]; Mueller v Mueller, 61 AD3d 652,654 [2009]; Mbanefo v Mbanefo,60 AD3d 648, 649 [2009]; Stubbs v Stubbs, 41 AD3d at 833). Furthermore, underthe circumstances of this case, the court properly directed that payment of interim counsel feesbe made from either the defendant's income or separate property.
Finally, the court providently exercised its discretion in directing the defendant to depositmarital funds in the sum of $139,000 in escrow to protect the plaintiff's right to equitabledistribution (see DiSanto v DiSanto, 279 AD2d 603 [2001]). Mastro, J.P., Balkin, Engand Leventhal, JJ., concur.