| Cheney v Cheney |
| 2011 NY Slip Op 06003 [86 AD3d 833] |
| July 21, 2011 |
| Appellate Division, Third Department |
| Holly B. Cheney, Appellant, v Edward B. Cheney,Respondent. |
—[*1] The Kassner Law Office, Schenectady (Mark A. Kassner of counsel), forrespondent.
Garry, J. Appeals (1) from an order of the Supreme Court (Cortese, J.), entered August 16,2010 in Montgomery County, which, among other things, partially denied plaintiff's motion forpendente lite relief, and (2) from an order of said court, entered December 15, 2010 inMontgomery County, which denied plaintiff's motion to renew and/or reargue.
Plaintiff and defendant were married in 1997 and have two children (born in 2000 and 2002).During the marriage, defendant was the primary wage earner, while plaintiff cared for thechildren and worked occasionally in part-time positions. The parties separated in January 2009and defendant moved out of the marital residence. In June 2009, Montgomery County FamilyCourt issued an order of child support and maintenance (hereinafter the support order), upon theparties' consent, directing defendant to pay plaintiff $1,600 per month in child support and$1,500 in maintenance, provide health insurance coverage for plaintiff and the children and payall unreimbursed medical expenses.
Plaintiff commenced this divorce action against defendant shortly thereafter and, in February2010, moved for pendente lite relief seeking increased temporary maintenance and child support,counsel fees, expert witness fees, a determination as to whether defendant's enhanced earningcapacity is subject to equitable distribution, exclusive possession of the marital residence and anorder directing defendant to make payments necessary to protect and preserve the residence. Theparties waived oral argument upon this application. In April 2010, while the motion was pending,defendant cross-moved for pendente lite relief, seeking, among other [*2]things, a downward modification of the support order on the groundthat he had been terminated from his job. During the pendency of this cross motion, SupremeCourt temporarily suspended all maintenance payments, reduced defendant's child supportobligation, and directed plaintiff to provide health insurance for the children, pay a pro rata shareof all unreimbursed medical expenses, and pay her own medical expenses. In opposition, plaintiffasserted that defendant was still earning income and requested a hearing on the issue of changedcircumstances. In August 2010, without conducting a hearing, the court issued a determinationpartially granting both motions. Upon the cross motion, the court reinstated defendant's childsupport obligation under the support order, continued the suspension of maintenance payments,continued the temporary provisions relative to health insurance and medical costs, and directedplaintiff to pay the carrying charges on the marital residence, while allowing her to seekreallocation at the time of trial. Upon plaintiff's motion, the court denied her requests for counselfees and expert witness fees, declined to make a determination as to defendant's enhancedearning capacity, and granted her request for exclusive occupancy of the marital residence.Plaintiff sought reargument and renewal, and the court denied the motion. Plaintiff appeals.
This Court does not generally modify pendente lite awards, as the best remedy for anyclaimed inequities is ordinarily a speedy trial (see Quarty v Quarty, 74 AD3d 1516, 1516-1517 [2010]; Coon v Coon, 29 AD3d 1106,1109 [2006]). However, such awards may be modified when exigent circumstances are shown,such as when "a party is unable to meet his or her financial obligations or justice otherwiserequires" (Colley v Colley, 200 AD2d 839, 839 [1994]; accord Coon v Coon, 29AD3d at 1109). We find that such exigent circumstances have been demonstrated here, and thatmodification is required.[FN1]
As the party seeking modification of the existing support order, defendant bore the burden ofestablishing a substantial change in circumstances upon his cross motion (see DomesticRelations Law § 236 [B] [9] [b]; Cynoske v Cynoske, 8 AD3d 720, 722 [2004]). A substantialchange in circumstances may be shown when, despite diligent efforts, a party fails to find newemployment after a job loss (see Matterof Silver v Reiss, 74 AD3d 1441, 1442 [2010]; Matter of Freedman v Horike, 26 AD3d 680, 682 [2006]; see also Jelfo v Jelfo, 81 AD3d1255, 1257 [2011]). Here, defendant sought downward modification of the support orderimmediately upon losing his job.[FN2]He did not allege that he had made any efforts to seek work, but merely asserted that he was"uncertain" whether or when he would be able to find new employment. This allegation wasinsufficient and, thus, defendant did not establish that he was entitled to modification of thesupport order (see Matter of Freedman v Horike, 26 AD3d at 682; Nichols v Nichols, 19 AD3d 775,779 [2005]).
Further, even if defendant had met this threshold requirement, his cross motion should [*3]not have been summarily granted. The parties had apparently agreedto have plaintiff's motion determined on the papers; as to the cross motion, however, plaintiffrequested a hearing and asserted that defendant was continuing to work for his previous employeron a per diem basis and was earning income from other sources.[FN3]These allegations were sufficient to establish the existence of factual issues entitling plaintiff to ahearing (see McMillen v Miller, 15AD3d 814, 816 [2005]; Kayemba v Kayemba, 309 AD2d 1045, 1046-1047 [2003]).
In assessing an application for pendente lite relief, "this Court's authority is as broad as thatof the Supreme Court, and it may substitute a discretionary determination for that of the SupremeCourt" (Quarty v Quarty, 74 AD3d at 1517 [internal quotation marks, citation andbrackets omitted]). At this point, the divorce action has been pending for almost two years, andremittal for an evidentiary hearing is inappropriate. We therefore exercise our discretion to denydefendant's cross motion and restore the parties to the positions that they had agreed to under thesupport order, by directing defendant to pay plaintiff the suspended maintenance payments owedunder the support order as well as the difference between the child support payments required bythe support order and the reduced amounts defendant paid between April 2010 and August 2010.Defendant is further directed to reimburse plaintiff for any other expenditures made pursuant tothe determination on the cross motion that exceeded those she would have owed under thesupport order, including payments for the carrying charges on the marital residence, the children'shealth insurance and unreimbursed medical expenses, and her own medical costs. Theappropriate remedy for any inequity that may result from this disposition at this stage in thelitigation is, as previously noted, a speedy trial (see Colley v Colley, 200 AD2d at 840).
Plaintiff next contends that Supreme Court erred in denying her request for increasedmaintenance and child support. However, like defendant, plaintiff was required to support herrequest for modification of the support order with a showing of a substantial change incircumstances (see Domestic Relations Law § 236 [B] [9] [b]; Cynoske vCynoske, 8 AD3d at 722). She did not do so, but merely claimed that the support order, towhich she had agreed, was inadequate to meet her needs. Accordingly, this request was properlydenied. Further, the court did not err in denying plaintiff's request for interim counsel fees. Suchfees may be awarded " 'to enable [a] spouse to carry on or defend the action or proceeding as, inthe court's discretion, justice requires, having regard to the circumstances of the case and of therespective parties' " (Johnson vChapin, 12 NY3d 461, 467 [2009], quoting Domestic Relations Law § 237 [a]; accord Lang v Lang, 72 AD3d1255, 1256 [2010]). Plaintiff has not yet expended any funds for counsel fees in thelitigation because her father, an attorney, is representing her without payment. Notably, althoughplaintiff's counsel asserted that he does expect to be paid in full for his services in the future, thecourt's determination was made without prejudice to renewal at the time of trial, and does notforeclose such an award. We find no abuse of discretion in this determination.
We also reject plaintiff's assertion that Supreme Court should have granted her request for adetermination that certain certifications that defendant acquired during the marriage hadenhanced his earning capacity and were therefore marital assets subject to equitable distribution(see Domestic Relations Law § 236 [B] [1] [c]; [5] [c]; O'Brien v O'Brien,66 NY2d 576, 586-587 [1985]; Farrell v Cleary-Farrell, 306 AD2d 597, 598 [2003]). Insupport of this claim, [*4]plaintiff submitted a transcript ofdefendant's examination before trial, in which he testified that while working for his employerbetween 1999 and 2010, he underwent training in the use of various pieces of software thatresulted in certifications enabling him to carry out his work as a trainer for businesses using thesoftware in question. As a result of this training, defendant also acquired a New York Stateteaching license certifying him to teach in certain proprietary schools. Teaching degrees andlicenses have been held to constitute marital property (see Brough v Brough, 285 AD2d913, 914 [2001]; Lapham v Ruflin, 241 AD2d 969, 970 [1997]). However, defendanttestified that he does not have an Associate's or Bachelor's degree and is not qualified to teach intraditional academic settings or in all proprietary schools. Instead, he testified that his licenselimits him to teaching in a narrow category of "school[s] that [are] in business to make money. . . teaching, basically, I guess, career changers." He was uncertain as to when hehad acquired the teaching license, which state agency had issued it and whether it was permanentor provisional. Moreover, defendant testified that his software certifications lost their valuewhenever new versions of the software in question were issued and required constant renewal.We agree with Supreme Court that the information was insufficient to permit a determination asa matter of law whether defendant's certifications and teaching license enhanced his earningcapacity (compare Halaby v Halaby, 289 AD2d 657, 659-660 [2001]). Accordingly, thisrequest was properly denied without prejudice to later renewal.
However, we disagree with Supreme Court's denial of plaintiff's request for expert witnessfees to assist in the determination of this question.[FN4]The factual determination whether, and by how much, a degree, license, or professional traininghas enhanced a spouse's earning capacity is routinely facilitated by expert analysis (see e.g.Litman v Litman, 61 NY2d 918, 920 [1984]; Evans v Evans, 55 AD3d 1079, 1080 [2008]; Farrell vCleary-Farrell, 306 AD2d at 598). The assistance of such an expert would plainly be helpfulhere, and the record demonstrates the substantial financial disparity between the parties andplaintiff's lack of resources for this purpose. Moreover, plaintiff supported her application withspecific information identifying the expert she intends to retain, the nature of the services to beprovided and the anticipated cost (compare Covington v Covington, 249 AD2d 735, 735[1998]). Accordingly, we find that plaintiff is entitled to an award of $1,500 for this purpose(see Litman v Litman, 61 NY2d at 920; McGarrity v McGarrity, 49 AD3d 824, 825-826 [2008]).
Finally, we reject plaintiff's contention that Supreme Court erred in denying her motion forreargument and renewal. First, "no appeal lies from the denial of a motion to reargue" (Brown v Reinauer Transp. Cos., LLC,67 AD3d 106, 109 n 1 [2009], lv dismissed and denied 14 NY3d 823 [2010]; see Matter of Biasutto v Biasutto, 75AD3d 671, 672 [2010]). Plaintiff did not support her application for renewal with newfactual information, nor did she provide a reasonable justification for failing to bring such factsto Supreme Court's attention on the initial motion (see CPLR 2221 [e]; JPMorgan Chase Bank, N.A. vMalarkey, 65 AD3d 718, 719-720 [2009]). Accordingly, the motion for renewal wasproperly denied.
Spain, J.P., Kavanagh, Stein and Egan Jr., JJ., concur. Ordered that the order entered August16, 2010 is modified, on the law and the facts, without costs, by reversing so much thereof asdenied that part of plaintiff's motion that requested expert witness fees and granted defendant'scross motion for pendente lite relief; plaintiff's motion granted to said extent, defendant's crossmotion denied, and defendant is directed to pay plaintiff $1,500 in expert witness fees and allamounts owed and unpaid under the June 16, 2009 amended order of support and maintenance ofthe Family Court of Montgomery County; and, as so modified, affirmed. Ordered that the orderentered December 15, 2010 is affirmed, without costs.
Footnote 1: The record demonstrates thatplaintiff was dependent on payments under the support order to meet the discrepancy betweenher part-time income of $440 per month and monthly expenses for herself and the children of$4,868.05, and that she was forced to apply for public assistance and food stamps aftermaintenance was suspended and child support was reduced.
Footnote 2: His affidavit in support of thecross motion was dated on the same day that he alleged the termination became effective.
Footnote 3: At a June 2010 examinationbefore trial, defendant conceded these allegations in part.
Footnote 4: Our discretionary authority inassessing this request is as broad as that of the trial court (see O'Brien v O'Brien, 66NY2d at 590).