Ch v. Rh

• Decision Date: 13 November 2007
• Citation: 846 N.Y.S.2d 560,18 Misc.3d 268,2007 NY Slip Op 27465
• Parties: CH, Plaintiff, v. RH, Defendant.
• Court: New York Supreme Court

18 Misc.3d 268

846 N.Y.S.2d 560

2007 NY Slip Op 27465

CH, Plaintiff, v. RH, Defendant.

Supreme Court, Nassau County.

November 13, 2007.

Eleanor Gery, West Sayville, for defendant.

Robert B. Pollack, P.C., Jericho, for plaintiff.

OPINION OF THE COURT

ARTHUR M. DIAMOND, J.

The defendant husband moves for an order granting pendente lite relief ordering: (1) defendant's exclusive use and occupancy of the marital residence; (2) ordering the plaintiff to share equally in all carrying charges on the parties' house in San Jose, California; (3) ordering the plaintiff to accept a counteroffer on the California property or that a receiver be appointed to sell same forthwith; (4) permitting defendant leave to apply for such interim counsel fees pretrial as may be warranted; (5) awarding a protective order against plaintiff preventing her from attempting to evaluate the Grace Christian Church; (6) ordering the plaintiff to serve a verified complaint on counsel for the defendant or that her action be dismissed; (7) ordering that a proper acceptable plaintiff's statement of net worth be served on counsel for defendant; and (8) granting such other and further relief as this court may deem just and proper.

The plaintiff cross-moves for an order: (1) directing an accounting of all bank accounts and/or entities from which the defendant derives any financial benefit, with the defendant to pay 100% of any and all expert fees and other costs necessitated by such an accounting; (2) directing that the parties' house located in San Jose, California, be sold and that sales proceeds be ordered held in escrow by plaintiff's attorney; (3) directing the defendant to serve an amended statement of net worth disclosing the defendant's interest in the Grace Christian Church, the real estate upon which it is situated, and the catering hall rental business operated on its premises, as well as the income and financial benefits derived therefrom; (4) directing the defendant to comply with the plaintiff's demand for discovery and inspection as served upon the defendant on or about February 3, 2007; (5) directing the appointment of an appropriate expert, paid for by the defendant, to establish the value for equitable distribution purposes of the defendant's enhanced earning capacity arising from his Master's degree in public health obtained during the marriage; (6) directing the appointment of an appropriate expert, paid for by the defendant, to establish the value of the defendant's Ph.D. in ministry obtained during the marriage; (7) awarding the plaintiff $20,000 in interim counsel fees; and (8) denying the defendant's motion as brought on by order to show cause in all respects.

The parties were married for 31 years, have three issue of the marriage, and one child is deceased. The plaintiff filed for divorce on January 18, 2007 by serving the defendant with a summons with notice and filing it with this court. The defendant alleges that he has yet to be served with a verified complaint and seeks an order directing the plaintiff to serve him with such complaint. This branch of the defendant's motion is denied as moot pursuant to an affirmation of service submitted by counsel for the plaintiff, which affirms that the defendant was served a verified complaint on July 18, 2007.

The defendant also alleges that the parties own a house in California and a house in Guyana. The defendant purchased two additional homes in his name during the marriage, one in Baldwin, New York, in 2001 and one in Queens, New York, in 2003. However, the defendant claims that the homes are not marital property as they both belong to the parties' son. The defendant states that the Baldwin home was purchased with settlement money given to the son who was seriously injured in a car accident in which another son of the parties was killed. The defendant claims that the second home in Queens was purchased with both the settlement money and equity from the refinancing of the Baldwin home.

The defendant currently resides in the Baldwin, New York, home which became the marital residence in 2001. The plaintiff moved out of the home in January 2007 and established residence elsewhere when she commenced this action. The parties' son resides in the Queens, New York, home with his wife and pays all of the carrying charges. The defendant alleges that the parties' son claims that both the Baldwin and Queens homes are his own separate property.

Based on the foregoing, the court determines as follows:

It is well settled that pendente lite awards are designed to ensure that a needy spouse is provided with funds for his or her support and reasonable needs. (Pascale v Pascale, 226 AD2d 439 [2d Dept 1996].) Moreover, the court is to consider the standard of living established during the marriage. (See Hartog v Hartog, 85 NY2d 36 [1995].)

The branch of defendant's motion seeking exclusive use and occupancy of the marital residence is granted during the pendency of this action as the plaintiff has voluntarily chosen to establish an alternative residence in the state of Florida, and does not contest the defendant's request for exclusive use and occupancy of the home in her cross motion. (Preston v Preston, 147 AD2d 464, 465 [2d Dept 1989]; Tillinger v Tillinger, 141 AD2d 535 [2d Dept 1988]; see also Kristiansen v Kristiansen, 144 AD2d 441, 442 [2d Dept 1988].) Further, the preliminary conference order of this court dated March 14, 2007 (Diamond, J.) directing the defendant to maintain the marital residence and pay all related expenses is affirmed during the pendency of this action.

With regard to the California home, the defendant seeks an order directing that the plaintiff share equally in all carrying charges on the parties' house in San Jose, California, and that the plaintiff either accept a pending counteroffer on the California property, or that a receiver be appointed to sell same forthwith. The plaintiff cross-moves to direct that the house be sold and that the sale proceeds be held in escrow. There were no provisions in the preliminary conference order with respect to the carrying charges on the California home.

The defendant claims that prior to the commencement of the divorce, the home was rented to a tenant whose rental income paid for the majority of the costs of maintaining the property. However, the tenant has since moved out and the defendant claims that he has been paying approximately $2,540 a month for maintenance of the home for the past couple of months and can no longer afford to do so. The defendant states that he can no longer afford to make the payments on the marital property. The defendant also avers that because the plaintiff is not communicating with him, he has been unable to get her to sign a listing agreement. The defendant claims that there was an offer for the purchase of the home at $650,000, and counteroffer made by him at $680,000, that require the plaintiff's consent.

The plaintiff claims that she has agreed to the sale of the California property and to an offer for the sale of the property at the price of $662,000 which had been in contract. However, the plaintiff claims that the defendant refused to sign the contract of sale when the plaintiff added a provision requiring that the proceeds of the sale be held in escrow pending a settlement on the divorce for purposes of equitable distribution. The plaintiff states that she is willing to accept all offers but argues against having to pay half of the carrying charges on the home since it was the defendant who destroyed the deal with the buyer and refuses to permit that the sale proceeds go into escrow. The plaintiff argues that because the defendant was at fault in destroying the deal, he alone should be responsible for the expenses on the home until it is sold.

It is well settled that unless the court alters the legal relationship of husband and wife by granting a divorce, an annulment, a separation, or by declaring a void marriage a nullity, it has no authority to order the sale, pendente lite, of a marital residence owned by the parties as tenants by the entirety. (See Sedgh v Sedgh, 142 Misc 2d 931, 932 [Sup Ct, Nassau County 1989]; Dweck v Dweck, 8 Misc 3d 1013[A], 2005 NY Slip Op 51091[U], *2 [Sup Ct, Nassau County 2005].) The court can only ensure the preservation of marital property by directing a party to make mortgage payments pendente lite as a means of temporary support, or by appointing a receiver when there is a fear of the dissipation of marital assets. (Id.; see also Rosenshein v Rosenshein, 211 AD2d 456 [1st Dept 1995]; Peters v Peters, 127 AD2d 575 [2d Dept 1987].)

Here, because the court has no authority to direct the sale of the California property pendente lite, and the parties have not entered into a court ordered stipulation to that effect, the court cannot direct a party to sign a sales contract. There is also no reason to appoint a receiver absent proof of dissipation of the asset. Thus, the defendant's motion and plaintiff's cross motion regarding the sale of the California property is denied.

Defendant's application for plaintiff to pay an equal share of the carrying charges on the parties' house in San Jose, California, during the pendency of this action is granted.

With regard to counsel fees, Domestic Relations Law § 237 authorizes the court to direct either spouse to pay counsel fees in order to enable the other spouse to carry on or defend the action as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties. (See DeCabrera v Cabrera-Rosete, 70 NY2d 879 [1987].) However, in exercising its discretionary power to award counsel fees, a court should review the financial circumstances of both parties together with all the other circumstances of the case. (DeCabrera, 70 NY2d at 881.)

Here, the defendant does not seek any direct counsel fees at this time but instead seeks leave to request them at a...