| Avello v Avello |
| 2010 NY Slip Op 03257 [72 AD3d 850] |
| April 20, 2010 |
| Appellate Division, Second Department |
| Elizabeth Avello, Appellant, v William Avello,Respondent. |
—[*1] Stevan A. Nosonowitz, Pleasant Valley, N.Y. (Lazar & Schwartz [Robert M. Schwartz], ofcounsel), for respondent.
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, Dutchess County (Pagones, J.), dated June 5, 2009, asdenied those branches of her motion which were to compel the husband to pay the sums of$5,000 in interim counsel fees and $7,500 in expert fees, and granted that branch of her motionwhich was for an award of pendente lite maintenance and child support to the extent of awardingher the sum of only $90 per week in pendente lite child support.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff wife and the defendant husband were married on June 9, 1984. They have twochildren: Alexandra, born in February of 1990, and Avery, born in May of 1993. The wife was47 years old at the time she commenced this action; the husband was 63. The husband hadworked for his father for many years at Avello Brothers Contractors, Inc., and he purchased thebusiness from his father for the sum of $150,000 in 1982. The husband remains the sole owner ofthat company, which performs commercial blacktop paving. He had an adjusted gross income of$80,251 in 2006. The wife owned several businesses throughout the marriage, including a candystore, a discotheque, and a restaurant. In 2006 the wife started a home interior retail business,using $250,000 of the couples' home equity line of credit for that purpose.
The wife commenced this action for a divorce on August 29, 2008, and simultaneouslymoved for pendente lite relief, including awards in the sums of $5,000 in interim counsel fees,$400 per week in pendente lite maintenance and child support, and $7,500 in expert fees for thevaluation of the husband's business. In support of her motion, she submitted an invoice for$2,630 from her attorney.
In an order dated June 5, 2009, the Supreme Court denied the wife's request for an award ofinterim counsel fees, denied her request for expert fees, and awarded her the sum of $90 perweek in pendente lite child support. The Supreme Court also directed the husband to pay themortgages and carrying costs on the marital residence. The wife appeals from so much of theorder as denied those branches of her motion which were to compel the husband to pay interimcounsel fees and expert fees, failed to award her pendente lite maintenance, and awarded heronly $90 per [*2]week in pendente lite child support. We affirmthe order insofar as appealed from.
"An award of interim counsel fees ensures that the nonmonied spouse will be able to litigatethe action, and do so on an equal footing with the monied spouse" (Prichep v Prichep, 52 AD3d 61,65 [2008]; see Davis-Potente vPotente, 60 AD3d 720 [2009]). Here, the record before us does not indicate that theplaintiff is at a financial disadvantage compared to the defendant. Under these circumstances, itwas not an improvident exercise of discretion for the Supreme Court to deny the plaintiff'srequest for interim counsel fees (cf.Penavic v Penavic, 60 AD3d 1026, 1027 [2009]; Prichep v Prichep, 52 AD3d at65).
The award of expert witness fees in a matrimonial action is left to the sound discretion of thetrial court, but such awards should not be made routinely (see O'Donnell v O'Donnell, 2 AD3d 604 [2003]). They should bemade upon a detailed showing of the services to be rendered and the estimated time involved(id.; see Ahern v Ahern, 94 AD2d 53, 58 [1983]). Absent affidavits from theexpert witnesses at issue, the Supreme Court lacks a sufficient basis to grant a motion for theaward of such fees (id.; see Corrao v Corrao, 209 AD2d 573, 574 [1994]). Here,the wife concedes that she failed to submit such an expert affidavit. Thus, the Supreme Courtproperly denied that branch of her motion which was for an award of an expert's fee.
Modifications of pendente lite awards should rarely be made by an appellate court and thenonly under exigent circumstances, such as when a party cannot meet his or her financialobligations (see Brooks v Brooks,30 AD3d 363, 364 [2006]; Otto vOtto, 13 AD3d 503 [2004]). "[A]ny perceived inequities in pendente lite support andmaintenance can best be remedied by a speedy trial, at which the parties' financial circumstancescan be fully explored" (Swickle vSwickle, 47 AD3d 704, 705 [2008]). Here, the wife failed to meet her burden ofdemonstrating exigent circumstances. Mastro, J.P., Dickerson, Belen and Chambers, JJ., concur.