McCarthy v. McCarthy

• Decision Date: 04 December 1989
• Citation: 156 A.D.2d 346,548 N.Y.S.2d 298
• Parties: Edward McCARTHY, Respondent, v. Elizabeth McCARTHY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 298

548 N.Y.S.2d 298

156 A.D.2d 346

Edward McCARTHY, Respondent, v. Elizabeth McCARTHY, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 4, 1989.

Faruolo, Caputi, Weintraub & Neary, Huntington (Brian P. Neary, of counsel), for appellant.

Labert Lang & Willen, Hauppauge (Louis S. Labert and Marilyn C. Rubine, of counsel), for respondent.

Before MANGANO, J.P., and BRACKEN, KUNZEMAN and SPATT, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the defendant wife appeals, as limited by her brief, from stated portions of an order of the Supreme Court, Suffolk County (Colby, J.), entered August 24, 1989, which, inter alia, (1) granted that branch of her motion which was for pendente lite maintenance solely to the extent of awarding her $25 per week, (2) denied that branch of her motion which was for pendente lite attorneys' fees, (3) granted that branch of the plaintiff husband's cross motion which was to compel her to transfer certain personal property to him, and (4) granted that branch of plaintiff husband's cross motion which was for a preliminary injunction enjoining her from selling marital property.

ORDERED that the order is modified by (1) increasing the award of pendente lite maintenance to the defendant to $175 per week, (2) deleting the provision thereof which denied that branch of the defendant's motion which was for pendente lite attorneys' fees and substituting therefor a provision granting that branch of the motion to the extent directing the plaintiff to pay her attorneys $3,500 in pendente lite attorneys' fees, and (3) deleting the provisions thereof which granted those branches of the plaintiff's cross motion which were to compel the defendant to transfer certain items of personal property to him, and for a preliminary injunction enjoining her from selling or encumbering marital property, and substituting therefor a provision denying those branches of the cross motion; as so modified, the order is affirmed insofar as appealed from, with costs to the defendant.

The plaintiff husband receives a gross income which is approximately five times greater than the gross income received by the defendant wife. The plaintiff retired from the New York City Fire Department in 1982 and receives a disability pension of approximately $35,000 per year as well as Social Security benefits in the amount of approximately $7,000 per year. He also receives additional income in an amount which is unknown, due to his failure to reveal the exact balances of several bank accounts. The plaintiff husband did admit, however, that he has approximately $24,000 in cash or cash equivalents, and this money, if invested, is presumably capable of producing additional income. His total income is thus more than adequate to cover his claimed expenses of $2,422.56 per month.

The defendant's income consists of Social Security benefits in the sum of $613 per month and rental income in the sum of $200 per month. This amount is totally insufficient to cover her claimed expenses of approximately $2,000 per month. While it is true that she owns a house with an estimated value of between $175,000 and $200,000 (encumbered by a mortgage in the principal sum of $22,000), this is her only asset to speak of, it may not be readily liquidated, and (except to the extent that the plaintiff might have used separate property to contribute to its improvement) it constitutes her separate property. (The plaintiff also owned a house prior to the parties' marriage, which he later sold for $147,000.)

Under these circumstances, it is clear that we must exercise our power to substitute our own discretion for that of the Supreme Court. We presume that the Supreme Court's decision was heavily influenced by its consideration of the fact that the marriage in question was of extremely brief duration (Domestic Relations Law § 236[B][6][a][2]; see, Clancy v. Clancy, 122 A.D.2d 563, 505 N.Y.S.2d 291 [proper to deny pendente lite maintenance where marriage lasted one month]; Stewart v. Stewart, 96 A.D.2d 939, 466 N.Y.S.2d 389 [error to grant temporary maintenance where marriage lasted one and one-half months]. However, pendente lite maintenance will generally be awarded to the extent necessary in order to allow a party to continue to be self-supporting, even where the marriage was a brief one (see, Clancy v. Clancy, supra; Stewart v. Stewart, supra ). The financial need of the spouse requesting pendente lite maintenance is a primary consideration (see, e.g., Fagelbaum v. Fagelbaum, 115 A.D.2d 454, 495 N.Y.S.2d 692; Chachkes v. Chachkes, 107 A.D.2d 786, 484 N.Y.S.2d 619; Van Ess v. Van Ess, 100 A.D.2d 848, 474 N.Y.S.2d 90) and the other factors which ordinarily govern the determination of permanent maintenance (Domestic Relations Law § 236[B][6][a][1]-[10], such as the...