| Ingersoll v Ingersoll |
| 2011 NY Slip Op 05840 [86 AD3d 684] |
| July 7, 2011 |
| Appellate Division, Third Department |
| Maryruth Louise Ingersoll, Respondent, v Barton RobertIngersoll, Appellant. |
—[*1] Alderman & Alderman, Syracuse (David S. Tamber of counsel), for respondent.
McCarthy, J. Appeal from an order of the Supreme Court (Coccoma, J.), entered October 4,2010 in Otsego County, which, among other things, partially granted plaintiff's motion for,among other things, temporary maintenance.
The parties were married in 1974. Plaintiff commenced this divorce action in April 2010.Thereafter, plaintiff moved for, as relevant here, an award of temporary maintenance. SupremeCourt found that plaintiff had a total monthly income of $4,770.93 while defendant had amonthly income of $8,900. The court partially granted plaintiff's motion to the extent ofawarding her monthly temporary maintenance in the amount of $697.44 based on the statutoryformula now set forth in Domestic Relations Law § 236 (B) (5-a). Defendant appeals.
Supreme Court should not have relied on Domestic Relations Law § 236 (B) (5-a).That subdivision, enacted in August 2010, became effective 60 days after enactment and appliesonly to matrimonial actions commenced after the effective date (see L 2010, ch 371,§§ 1, 6). As this action was commenced in April 2010, Domestic Relations Law§ 236 (B) (5-a) is inapplicable (see Milbrandt v Green Refractories Co., 79 NY2d26, 32 n 1 [1992]; Browning v County Fence Co., 259 AD2d 578, 579 [1999]).
Nor can Supreme Court's order be upheld under the correct statutory standard. UnderDomestic Relations Law § 236 (B) (former [6] [a])—which applies to this action(see L 2010, ch 371, §§ 2, 6)—a court may "order temporarymaintenance . . . in such amount as justice [*2]requires." A court awarding temporary maintenance must "considerthe respective financial conditions of the parties and the reasonable needs of the party seekingsupport pending trial" (Quarty vQuarty, 74 AD3d 1516, 1517 [2010]). The court must also articulate the "considerationsunderlying the determination" (Sedlack v Sedlack, 298 AD2d 691, 692 [2002];see Domestic Relations Law § 236 [B] [former (6) (b)]; Quilty v Quilty,169 AD2d 979, 979-980 [1991]). Here, Supreme Court recited the respective monthly income ofthe parties but gave no reason for the award except that it was dictated by Domestic RelationsLaw § 236 (B) (5-a), which the court acknowledged was not yet in effect. Althoughpendente lite awards should not ordinarily be modified on appeal "unless the ordered paymentsprevent the payor spouse from meeting his or her own financial obligations or where justiceotherwise requires" (Quarty v Quarty, 74 AD3d at 1516-1517), we cannot affirm an orderthat "fail[s] to set forth the statutorily required reasoning" (Quilty v Quilty, 169 AD2d at980; see Domestic Relations Law § 236 [B] [former (6) (b)]; Meyer vMeyer, 173 AD2d 1021, 1023 [1991]; LoMuscio-Hamparian v Hamparian, 137AD2d 500, 501 [1988]). Nevertheless, because our "authority is as broad as that of the SupremeCourt," we need not remit this issue for further proceedings but instead will consider plaintiff'smotion de novo (Wagner v Wagner, 175 AD2d 391, 392 [1991]; see Quarty vQuarty, 74 AD3d at 1517; Quilty v Quilty, 169 AD2d at 980).
On their statements of net worth, both parties claim that their expenses exceed their income.Plaintiff is retired, but receives a pension of $3,606.21 per month, plus $500 per month in rentalincome. Although defendant asks us to impute additional income based on plaintiff's earningpotential, plaintiff claims to be medically unable to work and we will credit this sworn statementuntil the issue is resolved at trial (see Colley v Colley, 200 AD2d 839, 841 [1994]).Plaintiff estimates her monthly expenses at $6,851.21. However, several of these expensesappear to be annual totals or are manifestly unreasonable. For instance, plaintiff claims to havemonthly expenses of $100 for "carpet cleaning solution & machine," $150 for "lawnseed/fertilizer," $250 for car registrations and licenses and $1,400 for vacations. She also claimsto spend $150 per month on "cell phone, car rental, [and] airfare" in addition to the vacationexpenses described above and a separate entry of $90 per month for "[t]elephone/cell." Aftersubtracting the duplicative expenses and amortizing the other questionable expenses, plaintiff'sestimated reasonable monthly expenses total $4,959, which is about $853 more than her monthlyincome. We must now accommodate these needs with defendant's ability to pay (see Fox vFox, 290 AD2d 749, 750 [2002]).
Defendant earns a gross salary of $9,461.25 per month, but claims to have $9,901.17 inmonthly expenses. Although his largest expenses—totaling more than half of hisincome—include mortgage and rent payments and tax, Social Security and Medicaredeductions, he also lists several expenses that appear unnecessary or excessive. We find that hisincome is sufficient to meet his expenses and that an award of temporary maintenance will notrender him unable to afford basic necessities (compare Quarty v Quarty, 74 AD3d at1517).
Finally, the parties enjoyed a high standard of living while they were together (see Fox vFox, 290 AD2d at 750). Prior to their separation, the parties owned two houses, four cars, aboat and a one-third interest in a business. As plaintiff's reasonable needs—as set forthabove—exceed her income by $853 per month while defendant's income is substantiallyhigher and sufficient to cover his expenses, we grant plaintiff's motion to the extent of awardingher $425 per month in temporary maintenance (see Domestic Relations Law § 236[B] [former (6)]; Quarty v Quarty, 74 AD3d at 1517; MacKinnon v MacKinnon,245 AD2d 676, 678 [1997]). Although this award may require both parties to make somesacrifices, it reasonably [*3]accommodates plaintiff's needs withdefendant's means.
Defendant's remaining contentions have been considered and found to be without merit oracademic in light of our decision.
Peters, J.P., Rose, Lahtinen and Malone Jr., JJ., concur. Ordered that the order is modified,on the law and the facts, without costs, by reducing defendant's payment of temporarymaintenance to $425 a month, and, as so modified, affirmed.