LANDAU v. LANDAU (1999)

In an action for a divorce and ancillary relief, the defendant wife appeals, on the ground of inadequacy and as limited by her brief, from so much of an order of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated October 10, 1997, as granted those branches of her motion which were for pendente lite maintenance, child support, and a counsel fee only to the extent of directing the plaintiff husband to pay temporary maintenance in the sum of $1,500 per month, temporary child support in the sum of $800 per month, and an interim counsel fee in the sum of $2,000.

ORDERED that the order is modified by deleting the provision thereof granting that branch of the wife's motion which was for pendente lite counsel fees only to the extent of directing the husband to pay the wife $2,000 in an interim counsel fee and substituting therefor a provision granting that branch of the motion to the extent of directing the husband to pay the wife an interim counsel fee in the sum of $7,500, with leave to make further application if necessary;  as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

 Modifications of pendente lite maintenance should rarely be made by an appellate court and then only under exigent circumstances such as when a party is unable to meet his or her financial obligations or when justice otherwise requires it (see, Beige v. Beige, 220 A.D.2d 636, 632 N.Y.S.2d 826;  Gitter v. Gitter, 208 A.D.2d 895, 617 N.Y.S.2d 895).   Pendente lite awards should be an accommodation between the reasonable needs of the moving spouse and the financial ability of the other spouse (see, Polito v. Polito, 168 A.D.2d 440, 562 N.Y.S.2d 561;  Shapiro v. Shapiro, 163 A.D.2d 294, 557 N.Y.S.2d 154).   Based on these considerations and the fact that the Supreme Court directed the husband to pay the expenses for maintaining the marital home, as well as the wife's automobile and day care expenses, the pendente lite award of the Supreme Court for child support and maintenance is proper under the circumstances of this case and should not be disturbed on appeal.

 However, the Supreme Court erred in directing the husband to pay the wife only $2,000 in counsel fees as the record demonstrates there exist great disparities in the parties' assets and the wife has insufficient assets to pay counsel (see, Domestic Relations Law § 237;  DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879, 881, 524 N.Y.S.2d 176, 518 N.E.2d 1168).   An award of $7,500, which would cover the wife's legal fees to the date of her motion, is appropriate under the circumstances.

The wife's remaining contentions are without merit.

MEMORANDUM BY THE COURT.