Opinion
12714/06.
Decided October 27, 2006.
The following papers numbered 1 to 3 were considered in connection with this motion by plaintiff for an Order: (a) directing defendant to forthwith deliver to plaintiff the sum of $100,000.00, out of marital funds to enable plaintiff to enjoy financial independence from the defendant; (b) directing defendant to pay to the plaintiff the sum of $5,700.00 per month as and for spousal maintenance, pendente lite; (c) directing defendant, in addition, to continue to provide plaintiff with exclusive use, during the pendency of this action, of the 2005 Jaguar automobile currently in her possession, pursuant to Domestic Relations Law, Section § 234 and directing that defendant maintain the existing insurance and make all lease payments as he has been doing, on said vehicle; (d) enjoining and restraining the defendant and his agents, attorneys, servants and employees, or anyone else on his behalf, during the pendency of this action, from transferring, assigning, conveying, mortgaging, pledging, or otherwise disposing of any of his assets or any interest therein, except pursuant to Order of this Court, unless in the ordinary course of business; (e) enjoining and restraining the defendant and his attorneys, agents, servants and employees, or anyone else on his behalf, during the pendency of this action, and until the further Order of this Court, from transferring, assigning, conveying, mortgaging, pledging, or otherwise disposing of any of the plaintiff's assets or any interest therein; (f) enjoining and restraining the defendant and his attorneys, agents, servants and employees, or anyone else on his on his behalf, during the pendency of this action, and until the further Order of this Court from access to any safe deposit boxes maintained by him personally or through his business and/or maintained jointly be the parties; (g) Enjoining and restraining the defendant and his attorney, agents, servants and employees, or anyone else on his behalf, during the pendency of this action, and until the further Order of this Court from transferring, assigning, conveying, mortgaging, reorganizing, and/or restructuring any of the business entities and/or ventures in which he has a proprietary interest; (h) directing defendant to continue to provide plaintiff with "supplemental" health, medical and dental insurance, pendente lite; (I) Directing defendant to pay all of plaintiff's unreimbursed health, medical and dental insurance, pendente lite; (j) granting plaintiff interim counsel fees in the sum of $25,000.00; and (k) such other and further relief as the Court may deem just and proper:
PAPERSNUMBERED
Order to Show Cause/Affidavit/Affirmation/Exhibits 1
Affirmation in Opposition/Affidavit/Exhibits 2
Reply Affirmation/Exhibits 3
Plaintiff, age 63, and defendant, age 66, were married on November 30, 1969. They have two emancipated children. Plaintiff left the marital home on July 4, 2006 and, as of the date of the reply papers, had just signed a lease for a two-bedroom apartment at a monthly rent of $2,500.00. By her own estimate, plaintiff will need temporary maintenance in the approximate amount of $6,200 per month. ($5,692 initially requested plus $500 of actual rent over her estimated $2,000 figure).
Plaintiff, a semi-retired teacher, earns $752.01 net bi-weekly which is directly deposited into the parties' joint checking account. In addition, plaintiff receives approximately $3,400.00 per month in pension income which is also directly deposited. Defendant is the former Chief Financial Officer of Gerber Life Insurance Company. Retired, he currently earns approximately $112,000.00 per year in pension benefits.
At the outset, the Court finds that defendant's objection to plaintiff's demand for relief based upon her failure to serve him with a verified complaint is moot. A verified complaint has since been served upon defendant, through counsel.
Temporary maintenance and temporary child support awards "are designed to insure that reasonable needs are met during the pendency of matrimonial litigation" ( Salerno v. Salerno, 142 AD2d 670, 672 [2nd Dept. 1988]). Temporary support orders are "intended to tide over the more needy party, not to determine the correct ultimate distribution" ( Yecies v. Yecies, 108 AD2d 813, 814 [2nd Dept., 1985]).
In Shapiro v. Shapiro ( 163 AD2d 294 [2nd Dept., 1990]), the Court noted at p. 296:
Pendente lite awards should be an accommodation between the reasonable needs of the moving spouse and the financial ability of the other spouse ( see Salerno v. Salerno, 142 AD2d 670, 672), determined with due regard for the pre-separation standard of living ( cf., Zahr v. Zahr, 149 AD2d 504; Van Ess v. Van Ess, 100 AD2d 838). Pendente lite awards are designed to insure that a needy spouse is provided with funds for his or her support and reasonable needs and those of the children in his or her custody ( see Cohen v. Cohen, 129 AD2d 550).
In making the temporary award, the Court has, based upon the papers now before it and the September 22, 2006 Court proceedings, "considered and balanced the respective income and financial situation of the parties, their age, health, necessities and obligations, the nature and duration of the marriage, the present and future [capacities of the parties] to be self-supporting, the standard of living during the marriage, the tax consequences to the parties and the income which the parties are capable of earning by honest efforts" ( Halperin v. Halperin, 234 AD2d 59 [1st Dept., 1996]).
Applying these principles to the evidence presented to the Court and upon consideration of the remaining aspects of the relief being requested; it is hereby
ORDERED, that plaintiff's application to direct defendant to forthwith deliver to plaintiff the sum of $100,000.00 out of marital funds is denied there being no valid basis before the Court which would justify the current distribution of marital assets; and, it is further
ORDERED, that defendant is directed to allow plaintiff to withdraw from the marital account into which her pension and employment income is directly deposited all of her pension and employment income directly deposited therein, retroactive to the date of application, and shall, in addition thereto, pay plaintiff $1,100.00 per month as temporary tax free maintenance on the first day of each month, retroactive to the date of application with arrears to be paid by November 1, 2006; and, it is further
ORDERED, that defendant is directed to continue to provide plaintiff with exclusive use, during the pendency of this action, of the 2005 Jaguar automobile currently in her possession and, effective, November 1, 2006, plaintiff is to pay for the existing insurance on and the lease payments for the vehicle; and, it is further
ORDERED, that defendant shall forward the insurance and lease payment bills to plaintiff within five days of his receipt thereof; and, it is further
ORDERED, that both parties, their agents, attorneys, servants and employees, and anyone else acting on their behalf, are enjoined and restrained during the pendency of this action from transferring, assigning, conveying, mortgaging, pledging, or otherwise disposing of any of their assets or any interest therein, except pursuant to Order of this Court, unless in the ordinary course of business; and, it is further
This Decision Order is supplemented to the extent that the date of its execution is noted on the last page.
ORDERED, that, both parties, their agents, attorneys, servants and employees, and anyone else acting on their behalf, are hereby enjoined and restrained during the pendency of this action, and until the further Order of this Court, from accessing any safe deposit boxes maintained by both or either of them personally or through any business; and, it is further
ORDERED, that, both parties and their agents, attorneys, servants and employees, and anyone else acting on their behalf, are hereby enjoined and restrained during the pendency of this action from transferring, assigning, conveying, mortgaging, reorganizing, and/or restructuring any of business entities and/or ventures in which they may have a proprietary interest; and, it is further
ORDERED, that defendant shall continue to provide plaintiff with any existing "supplemental" health, medical and dental insurance; and, it is further
ORDERED, that, plaintiff's application to have defendant pay plaintiff's unreimbursed health, medical and dental insurance, pendente lite is denied, such amount having already been included in the itemization of expense set forth in plaintiff's affidavit in support dated August 21, 2006 for which this Court has already taken into account in setting the pendente lite award herein; and, it is further
ORDERED, that defendant shall pay to plaintiff by November 15, 2006, $10,000 as and for interim counsel fees, the Court being cognizant that plaintiff has admittedly taken out approximately $12,500 from the parties joint checking account.
The parties are reminded that the case is currently scheduled for a grounds trial at 11:00 A.M. on October 27, 2006.
The foregoing constitutes the Opinion, Decision Order of the Court.