| Vistocco v Jardine |
| 2014 NY Slip Op 02574 [116 AD3d 842] |
| April 16, 2014 |
| Appellate Division, Second Department |
| Andrew Vistocco, Appellant, v Liz Jardine,Respondent. |
—[*1] Christine K. Wienberg, New City, N.Y., for respondent.
In an action for a divorce and ancillary relief, the plaintiff appeals from so much ofan order of the Supreme Court, Orange County (Slobod, J.), dated November 2, 2012, asgranted the defendant's motion for pendente lite relief to the extent of awarding her thesum of $3,000 per week for temporary child support, directing him to pay the mortgageand taxes on the marital residence and the defendant's car insurance, and awarding thedefendant the sum of $12,500 in interim counsel fees and the sum of $3,500 in expertfees.
Ordered that the order is affirmed insofar as appealed from, with costs.
The parties were married in 1995 and have three unemancipated children. Theplaintiff commenced this action for a divorce and ancillary relief, and the defendantmoved for pendente lite relief. The Supreme Court awarded the defendant the sum of$3,000 per week for child support and $3,000 per week in temporary spousalmaintenance, directed the plaintiff to pay the mortgage and taxes on the marital residencewhere the defendant resides with the parties' children, directed the plaintiff to pay thedefendant's car insurance, and awarded the defendant interim counsel fees and expertfees in the sums of $12,500 and $3,500, respectively.
The plaintiff argues that the Supreme Court erred in awarding the defendant $3,000per week for temporary child support and that the court should have calculated his childsupport obligation pursuant to the Child Support Standards Act (hereinafter CSSA),which, applying the statutory income cap of $136,000, would have yielded a childsupport award of $3,286 per month. "Modifications of pendente lite awards should rarelybe made by an appellate court and then only under exigent circumstances" (Otto v Otto, 13 AD3d503, 503 [2004]). The plaintiff failed to establish exigent circumstances to justify adownward modification of the pendente lite award of child support.
In any event, the Supreme Court was not required to calculate the plaintiff's childsupport obligation pursuant to the CSSA (see George v George, 192 AD2d 693[1993]; see also Domestic Relations Law § 236 [B] [7]). "The ChildSupport Standards Act . . . provides the formulas to be applied to theparties' income and the factors to be considered in determining a final award of child[*2]support. Courts considering applications for pendentelite child support may, in their discretion, apply the CSSA standards and guidelines, butthey are not required to do so" (Davydova v Sasonov, 109 AD3d 955, 957 [2013] [internalquotation marks and citation omitted]). Any perceived inequity in the award of pendentelite child support can best be remedied by a speedy trial, at which the parties' financialcircumstances can be fully explored (see Swickle v Swickle, 47 AD3d 704 [2008]).
The plaintiff also argues that the Supreme Court erred in directing him to pay, inaddition to spousal maintenance, the mortgage and taxes on the marital residence and thedefendant's car insurance. He contends that the pendente lite maintenance award isintended to cover the defendant's basic living expenses, which include the mortgage,property taxes, and her car insurance.
The formula to determine temporary spousal maintenance that is outlined inDomestic Relations Law § 236 (B) (5-a) (c) is intended to cover all of a payeespouse's basic living expenses, including housing costs, the costs of food and clothing,and other usual expenses (seeKhaira v Khaira, 93 AD3d 194 [2012]). However, it may be appropriate todirect payment by the monied spouse of the mortgage and taxes on the marital residenceand other expenses of the nonmonied spouse under certain circumstances (seeid.). Here, in light of the evidence that the plaintiff's income exceeded $500,000 andthe gross disparity between the plaintiff's income and the defendant's income, theSupreme Court properly awarded additional support in the form of a directive to theplaintiff to pay the mortgage and taxes on the marital residence (see DomesticRelations Law § 236 [B] [5-a] [c] [2] [a] [ii]), as well as the defendant's carinsurance (see e.g. Goldberg vGoldberg, 98 AD3d 944 [2012]; Macagnone v Macagnone, 7 AD3d 680 [2004]).
The plaintiff further argues that the Supreme Court erred in awarding the defendant$12,500 in interim counsel fees in light of the other awards it made to her. "An award ofcounsel fees pursuant to Domestic Relations Law § 237 (a) is a matter within thesound discretion of the trial court, and the issue is controlled by the equities andcircumstances of each particular case" (Prichep v Prichep, 52 AD3d 61, 64 [2008] [internalquotation marks omitted]). "[I]n exercising its discretionary power to award counsel fees,a court should review the financial circumstances of both parties together with all theother circumstances of the case, which may include the relative merit of the parties'positions" (DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881 [1987]). The courtmay also consider whether either party has engaged in conduct or taken positionsresulting in a delay of the proceedings or unnecessary litigation (see Ciampa v Ciampa, 47AD3d 745 [2008]). However, when a party to a divorce action requests an interimaward of counsel fees, as opposed to a final award, no such detailed inquiry is required(see Prichep v Prichep, 52 AD3d at 65). Here, the record clearly establishes thatthe defendant is the nonmonied spouse, and it was not an improvident exercise ofdiscretion for the Supreme Court to award the defendant $12,500 in interim counsel fees(see Ciampa v Ciampa, 47 AD3d at 748).
Finally, the plaintiff argues that the Supreme Court erred in awarding the defendant$3,500 in expert fees. The award of expert witness fees in a matrimonial action is left tothe sound discretion of the trial court, and should be made upon a detailed showing ofthe services to be rendered and the estimated time involved (see Avello v Avello, 72 AD3d850 [2010]). Here, the defendant submitted an affidavit from the forensic accountantshe retained which explained the services to be rendered and the estimated cost involvedfor his time. The defendant also provided a copy of the accountant's curriculum vitaewhich demonstrated his experience in the field. Thus, the Supreme Court had a sufficientbasis to award expert fees to the defendant in the sum of $3,500. Dillon, J.P., Hall,Austin and Duffy, JJ., concur.