| Many v Many |
| 2011 NY Slip Op 04213 [84 AD3d 1036] |
| May 17, 2011 |
| Appellate Division, Second Department |
| Lynne Ann Many, Appellant, v John Scott Many,Respondent. |
—[*1] Domenick J. Porco, Scarsdale, N.Y., for respondent.
In an action for a divorce and ancillary relief, the plaintiff wife appeals from so much of anorder of the Supreme Court, Westchester County (Walker, J.), dated April 16, 2010, as, upondenying that branch of her motion for pendente lite relief which was to restrain the defendanthusband from encumbering the marital residence, in effect, authorized the defendant to refinancethe equity in the marital residence and to use any funds obtained therefrom for the sole purposeof paying his pendente lite maintenance obligation and directed the defendant to pay arrears forhis pendente lite maintenance obligation retroactive to only February 1, 2010, and awarded heran attorney's fee in the sum of only $15,000.
Ordered that on the Court's own motion, the notice of appeal from so much of the order as, ineffect, authorized the defendant to refinance the equity in the marital residence and to use anyfunds obtained therefrom for the sole purpose of paying his pendente lite maintenance obligationis treated as an application for leave to appeal from that portion of the order, and leave to appealis granted (see CPLR 5701 [c]); and it is further,
Ordered that the order is modified, on the law, by deleting the provision thereof directing thedefendant to pay pendente lite maintenance arrears retroactive to February 1, 2010, andsubstituting therefor a provision directing the defendant to pay pendente lite maintenance arrearsretroactive to June 13, 2009; as so modified, the order is affirmed insofar as appealed from,without costs or disbursements.
Contrary to the plaintiff wife's contention, the Supreme Court did not improvidently exerciseits discretion in failing to restrain the defendant husband from encumbering the marital residence."An interim restraint on the disposition or encumbrance of property should not be imposedabsent a demonstration that the party to be restrained has done, or is threatening to do, an actwhich would prejudice the movant's equitable distribution claim" (Rogers v Rogers, 161AD2d 754 [1990]; see Sinanis vSinanis, 67 AD3d 773, 775 [2009]; DiSanto v DiSanto, 279 AD2d 603 [2001];Meyer v Meyer, 229 AD2d 354, 355 [1996]; Guttman v Guttman, 129 AD2d537, 539 [1987]). Here, no evidence indicates that the defendant had done, or was threatening todo, an act that would threaten the plaintiff's equitable distribution claim. We [*2]note that while the plaintiff may be entitled to an equitable share ofthe value of the marital residence, that issue has yet to be adjudicated. At a later date, theSupreme Court will be able to ensure that the plaintiff is reimbursed for her equitable share ofany funds used by the defendant as a result of the sale or refinancing of the marital residence tomeet his pendente lite maintenance obligation (see generally Prichep v Prichep, 52 AD3d 61 [2008]; Ciampa v Ciampa, 47 AD3d 745[2008]).
A party's maintenance obligations are retroactive to the date the application first for suchrelief was made (see Domestic Relations Law § 236 [B] [6] [a]; Higgins v Higgins, 50 AD3d 852,854 [2008]; Schiffer v Schiffer, 21AD3d 889, 890 [2005]). Inasmuch as the plaintiff first sought an award of pendente litemaintenance by her order to show cause dated June 13, 2009, the Supreme Court should have setJune 13, 2009, as the date from which to calculate the defendant's arrears (see DomesticRelations Law § 236 [B] [6] [a]; Higgins v Higgins, 50 AD3d at 854; Schifferv Schiffer, 21 AD3d at 890).
"In a matrimonial action, an award of an attorney's fee should be based, inter alia, on therelative financial circumstances of the parties and the relative merit of their positions" (Ciociano v Ciociano, 54 AD3d797, 797 [2008]; see Domestic Relations Law § 237 [a]). "An award ofinterim counsel fees ensures that the nonmonied spouse will be able to litigate the action, and doso on equal footing with the monied spouse" (Prichep v Prichep, 52 AD3d at 65). Courts"should normally exercise their discretion to grant such a request made by the nonmoniedspouse" (id.). Here, the Supreme Court did not improvidently exercise its discretion inawarding the plaintiff an attorney's fee in the sum of only $15,000. Covello, J.P., Lott, Romanand Miller, JJ., concur.