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Gerald Arthur Evelyn, appellant,
v
Yvonne Henry Evelyn, respondent.

Appellate Division: Second Judicial Department
October 12, 2018

Evelyn v Henry

2018-03898 DECISION & ORDER

The Law Firm of Gary N. Weintraub, LLP, Huntington, NY, for appellant.
Simonetti & Associates, Woodbury, NY (Charlotte M. Betts of counsel), for
respondent.

In an action for a divorce and ancillary relief, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Cheryl A. Joseph, J.), dated February 15, 2018. The order, insofar as appealed from, granted those branches of the defendant’s motion which were for an award of pendente lite child support and maintenance, and an award of interim counsel fees, and awarded the defendant interim counsel fees in the sum of $25,000.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendant’s motion which was for an award of interim counsel fees and awarding the defendant interim counsel fees in the sum of $25,000, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the defendant.

The plaintiff and the defendant were married in September 2003 and have four children, born in 2004, 2006, 2010, and 2017. In February 2017, the plaintiff commenced this action for a divorce and ancillary relief. The defendant moved, inter alia, for an award of pendente lite child support and maintenance, and an award of interim counsel fees. The Supreme Court granted those branches of the motion and awarded the defendant pendente lite child support and maintenance, and interim counsel fees in the sum of $25,000. The plaintiff appeals.

“Modifications of pendente lite awards should rarely be made by an appellate court and then only under exigent circumstances, such as where a party is unable to meet his or her financial obligations, or justice otherwise requires” (Yerushalmi v Yerushalmi, 136 AD3d 809, 811 [internal quotation marks omitted]; see Swickle v Swickle, 47 AD3d 704). “Consequently, any perceived inequities in pendente lite maintenance [and child support] can best be remedied by a speedy trial, at which the parties’ financial circumstances can be fully explored” (Maliah-Dupass v Dupass, 140 AD3d 832, 833; see Noy v Noy, 160 AD3d 885, 886). Here, the plaintiff failed to establish the existence of any exigent circumstances warranting a modification of the Supreme Court’s pendente lite maintenance and child support awards.

However, we disagree with the Supreme Court’s determination to grant that branch of the defendant’s motion which was for an award of interim counsel fees. The defendant’s motion was not supported with the necessary documentation (see 22 NYCRR 202.16[k][3]). Accordingly, the court should have denied that branch of the defendant’s motion which was for an award of interim counsel fees (see Osman v Osman, 142 AD3d 978, 980; Vitale v Vitale, 112 AD3d 614, 615). SCHEINKMAN, P.J., MASTRO, MALTESE and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court


The case of Evelyn v Henry is provided as part of a free educational service by J. Douglas Barics, attorney at law, for reference only. Cases such as Evelyn v Henry may be overruled by subsequent decisions, different judicial departments may have different controlling case law, and the level of the court deciding each case will determine whether it is controlling law or not. Evelyn v Henry is presented here to help illustrate how the law works in general, but for specific legal matters, an attorney should be consulted.

If you have any questions or comments, please feel free to contact Mr. Barics at lawyer@jdbar.com or (631) 864-2600. For more articles and information, please visit www.jdbar.com.