| Woodford v Woodford |
| 2012 NY Slip Op 07993 [100 AD3d 875] |
| November 21, 2012 |
| Appellate Division, Second Department |
| Deirdre Woodford, Respondent, v Paul Woodford,Appellant. |
—[*1]
In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief,from (1) so much of an order of the Supreme Court, Suffolk County (Quinn, J.), dated July 15,2011, as granted that branch of the plaintiff's motion which was for pendente lite relief to theextent of directing him to pay the plaintiff both temporary maintenance and 100% of certaincarrying charges on the marital residence, and an interim counsel fee, and (2) so much of an orderof the same court dated February 3, 2012, as denied that branch of his motion which was, ineffect, to vacate so much of the order dated July 15, 2011, as directed him to pay the plaintiff aninterim counsel fee, and granted that branch of his motion which was to modify certainprovisions of that order only to the extent of temporarily suspending his obligation to pay theplaintiff temporary maintenance and 100% of certain carrying charges on the marital residence.
Ordered that the appeal from so much of the order dated February 3, 2012, as granted thatbranch the defendant's motion which was to modify certain provisions of the order dated July 15,2011, only to the extent of temporarily suspending his obligation to pay the plaintiff temporarymaintenance and 100% of certain carrying charges on the marital residence is dismissed asacademic, without costs or disbursements, in light of our determination on the appeal from theorder dated July 15, 2011; and it is further,
Ordered that the order dated July 15, 2011, is modified, on the law, by deleting the provisionthereof granting that branch of the plaintiff's motion which was for pendente lite relief to theextent of directing the defendant to pay the plaintiff both temporary maintenance and 100% ofcertain carrying charges on the marital residence; as so modified, the order dated July 15, 2011, isaffirmed insofar as appealed from, without costs or disbursements, and the matter is remitted tothe Supreme Court, Suffolk County, for a new determination pursuant to Domestic RelationsLaw § 236 (B) (5-a) of those branches of the plaintiff's motion which were for pendentelite relief as to maintenance and payment of the carrying charges on the marital residence; and itis further,
Ordered that the order dated February 3, 2012, is affirmed insofar as reviewed, without costsor disbursements.[*2]
Domestic Relations Law § 236 (B) (5-a) sets forthformulas for the courts to apply to the parties' reported income in order to determine thepresumptively correct amount of temporary maintenance. Domestic Relations Law § 236(B) (5-a) also provides that any deviation from the result of the statutory formulas should beexplained by the court (see Domestic Relations Law § 236 [B] [5-a] [e] [1]). In anorder dated July 15, 2011, the Supreme Court, inter alia, applied the statutory formulas inDomestic Relations Law § 236 (B) (5-a) and granted the plaintiff's motion for pendente literelief to the extent of directing the defendant to pay the plaintiff temporary maintenance. Inaddition, the court directed the defendant to pay the plaintiff 100% of certain carrying charges onthe marital residence and an interim counsel fee.
On appeal, the defendant correctly contends that there is no indication that the formulas setforth in Domestic Relations Law § 236 (B) (5-a) were intended to cover the temporarysupport needs of the nonmonied spouse, here the plaintiff, but not the carrying charges on amarital residence (see Khaira vKhaira, 93 AD3d 194, 200 [2012] ["No language in (Domestic Relations Law §236 [B] [5-a]) . . . specifically addresses whether the statutory formulas are intendedto include the portion of the carrying costs of their residence attributable to the nonmoniedspouse and the children"]; A.C. v D.R.,32 Misc 3d 293, 312 [2011]). Indeed, it is "reasonable and logical" to view the formulasset forth in Domestic Relations Law § 236 (B) (5-a) "as covering all the spouse's basicliving expenses, including housing costs" (Khaira v Khaira, 93 AD3d at 200). Based onthe record, it is possible that the Supreme Court was unaware that the temporary maintenanceaward was intended to cover all of the plaintiff's basic living expenses. Under the circumstances,that portion of the order dated July 15, 2011, directing the defendant to pay the plaintiff bothtemporary maintenance and 100% of certain carrying charges on the marital residence must bevacated, and the matter remitted to the Supreme Court, Suffolk County, for a new determinationpursuant to Domestic Relations Law § 236 (B) (5-a) of those branches of the plaintiff'smotion which were for pendente lite relief as to maintenance and payment of the carrying chargeson the marital residence.
However, contrary to the defendant's contention, the Supreme Court, in performing thestatutory calculations pursuant to Domestic Relations Law § 236 (B) (5-a), properlydeclined to impute income to the plaintiff.
In addition, the Supreme Court providently exercised its discretion in directing the defendantto pay the plaintiff an interim counsel fee (see Domestic Relations Law § 237 [a];Prichep v Prichep, 52 AD3d 61[2008]). Furthermore, the court properly denied that branch of the defendant's motion which was,in effect, to vacate so much of the order dated July 15, 2011, as directed him to pay the plaintiffan interim counsel fee.
In light of our determination, we need not address the defendant's remaining contentions.Skelos, J.P., Florio, Leventhal and Hall, JJ., concur.