| Renga v Renga |
| 2011 NY Slip Op 06098 [86 AD3d 634] |
| July 26, 2011 |
| Appellate Division, Second Department |
| Angela Renga, Respondent, v Gregory Renga,Appellant. |
—[*1] Susan Chana Lask, New York, N.Y., for respondent.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief,from so much of an order of the Supreme Court, Nassau County (Falanga, J.), dated June 14,2010, as granted that branch of the plaintiff's motion which was to enjoin and restrain him fromwithdrawing any funds from an investment account into which the proceeds of a medicalmalpractice action settlement were deposited to the extent of limiting his withdrawals to the sumof only $4,627 per month and denied those branches of his cross motion which were for awardsof pendente lite child support and an attorney's fee.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the plaintiff's motion which was to enjoin and restrain the defendant from withdrawingany funds from an investment account into which the proceeds of a medical malpractice actionsettlement were deposited to the extent of limiting his withdrawals to the sum of $4,627 permonth; as so modified, the order is affirmed insofar as appealed from, without costs ordisbursements, and the matter is remitted to the Supreme Court, Nassau County, for furtherproceedings in accordance herewith; and it is further,
Ordered that pending a new determination of that branch of the plaintiff's motion which wasto enjoin and restrain the defendant from withdrawing any funds from the subject investmentaccount, so much of the order dated June 14, 2010, as enjoined and restrained the defendant fromwithdrawing any funds from the subject investment account in excess of $4,627 per month shallremain in effect.
The relevant facts are set forth in a related appeal (see Renga v Renga, 86 AD3d 632[2011] [decided herewith]).
An appellate court should rarely modify a pendente lite award, and then " 'only under exigentcircumstances, such as where a party is unable to meet his or her financial obligations, or justiceotherwise requires' " (Malik vMalik, 66 AD3d 968, 968 [2009], quoting Levakis v Levakis, 7 AD3d 678, 678 [2004]; see Silver v Silver, 46 AD3d 667,668 [2007]; Fruchter v Fruchter, 29AD3d 942, 944 [2006]). Further, pendente lite awards "should be an accommodationbetween the reasonable needs of the moving spouse and the financial ability of the other spouse. . . with due regard for the preseparation standard [*2]of living" (Byer v Byer, 199 AD2d 298 [1993]; seeSilver v Silver, 46 AD3d at 668; Levakis v Levakis, 7 AD3d 678 [2004]). "Any perceived inequitiesin pendente lite support can best be remedied by a speedy trial, at which the parties' financialcircumstances can be fully explored" (Conyea v Conyea, 81 AD3d 869, 870 [2011]; see Avello v Avello, 72 AD3d 850[2010]; Malik v Malik, 66 AD3d968 [2009]). Here, in denying that branch of the defendant's cross motion which was for anaward of pendente lite child support, the Supreme Court properly considered the defendant'sactual reasonable living expenses, and there are no exigent circumstances sufficient to disturb theSupreme Court's determination on this issue (see Malik v Malik, 66 AD3d 968 [2009]; Silver v Silver, 46AD3d at 668; Fruchter v Fruchter, 29 AD3d at 944; Levakis v Levakis, 7 AD3d 678 [2004]). Accordingly, the SupremeCourt properly denied that branch of the defendant's cross motion which was for an award ofpendente lite child support.
The Supreme Court properly denied that branch of the defendant's cross motion which wasfor an award of an interim attorney's fee (see Domestic Relations Law § 237 [a];O'Shea v O'Shea, 93 NY2d 187, 190 [1999]).
In the related appeal (see Renga v Renga, 86 AD3d 632 [2011] [decided herewith]),the defendant appealed from so much of an order dated December 22, 2009, as, upon reargument,adhered to its original determination in an order dated September 1, 2009, which, in effect, and inpertinent part, determined that the unallocated net settlement proceeds of a medical malpracticeaction received by the parties during their marriage in the principal sum of $4.8 million wereseparate property, and that the allocation of that property between the parties would bedetermined at trial. We are reversing the order insofar as appealed from on the ground that theparties' deposit of the unallocated net settlement proceeds into a joint investment account, fundsmade payable to both parties, gave rise to a presumption that the proceeds were transmuted intomarital property, and we are remitting the matter to the Supreme Court, Nassau County, for adetermination, at trial, as to whether the plaintiff can rebut this presumption. Since thedetermination that the settlement proceeds were separate property, which determination underliesthe order appealed from herein, is no longer in effect, we remit this matter to the Supreme Court,Nassau County, for a new determination of that branch of the plaintiff's pendente lite motionwhich was to enjoin and restrain the defendant from withdrawing any money from an investmentaccount funded with a portion of the subject unallocated net settlement proceeds. In the interim,so much of the order dated June 14, 2010, as enjoined and restrained the defendant fromwithdrawing any funds from the subject investment account in excess of $4,627 per month shallremain in effect.
We decline the plaintiff's request for the imposition of sanctions against the defendant inconnection with this appeal (see 22 NYCRR 130-1.1). Dillon, J.P., Belen, Sgroi andMiller, JJ., concur.