| Francis v Francis |
| 2013 NY Slip Op 07429 [111 AD3d 454] |
| November 12, 2013 |
| Appellate Division, First Department |
| Marcia Francis, Appellant, v Gladstone A. Francis,Respondent. |
—[*1] Christopher W. Edwards, Bronx, for respondent.
Order, Supreme Court, Bronx County (Nelida Malave-Gonzalez, J.), entered October19, 2012, which awarded plaintiff $868.66 biweekly in temporary maintenance, anddenied plaintiff's request for counsel and appraisal fees, unanimously reversed, on thelaw, without costs, the award of temporary maintenance vacated, and the matterremanded for a reconsideration of the award in light of the directives of DomesticRelations Law § 236 (B) (5-a), and for a reconsideration of the request for counseland appraisal fees.
To determine temporary maintenance, the motion court had to apply DomesticRelations Law § 236 (B) (5-a), which had become effective on October 12, 2010.While the motion court properly followed the calculations provided in that section toarrive at a presumptive award of temporary maintenance, it did not address the fact thatdefendant was paying the carrying costs on the marital residence, where both parties stillreside, and that plaintiff specifically requested an order directing that defendant continueto pay those costs, as well as her unreimbursed medical expenses (see Khaira v Khaira, 93 AD3d194, 197 [1st Dept 2012]; Woodford v Woodford, 100 AD3d 875, 877 [2d Dept2012]; see also H.G. v N.K., 40 Misc 3d 1242[A], 2013 NY Slip Op 51529[U][Sup Ct, Kings County 2013]). Significantly, this Court has viewed the "formula adoptedby the new maintenance provision as covering all the spouse's basic living expenses,including housing costs" (Khaira, 93 AD3d at 200). Accordingly, we vacate theaward and remand the matter for a reconsideration of the award in light of the directivesof Domestic Relations Law § 236 (B) (5-a).
We note that in reconsidering the award of temporary maintenance, the motion courtshould consider the payment of these carrying costs on the marital residence, half ofwhich should be credited to defendant in calculating the award. The court should alsoarticulate any other factors it may consider in deviating from the presumptive award,including plaintiff's medical condition and her inability to work. Any award ofmaintenance should be made effective as of the date of application (see DomesticRelations Law § 236 [B] [6] [a]; Nacos v Nacos, 96 AD3d 579 [1st Dept 2012]; H.K. vJ.K., 32 Misc 3d 1226[A], 2011 NY Slip Op 51429[U], *6 n 4 [Sup Ct, NY County2011]).
Given the rebuttable presumption that counsel fees shall be awarded to the lessmonied spouse (Domestic Relations Law § 237), we also remand for areconsideration of plaintiff's request for counsel and [*2]appraisal fees. The motion court's denial of those requestswas based on the now vacated award and a mathematical error in the calculation of theparties' respective incomes following the award of temporary maintenance.Concur—Andrias, J.P., Acosta, Saxe, Renwick and Manzanet-Daniels, JJ.