Ferdinand v. Ferdinand

Full title: LYNN A. FERDINAND, Respondent, v. GEORGE FERDINAND, Appellant

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: May 1, 1995

215 A.D.2d 350 (N.Y. App. Div. 1995)

625 N.Y.S.2d 650

Opinion

May 1, 1995

Appeal from the Supreme Court, Suffolk County (Cannavo, J.).

Ordered that the order dated November 1, 1993, is modified by deleting the provision thereof granting pendente lite maintenance to the plaintiff in the amount of $600 per week, and by substituting therefor a provision awarding the plaintiff $475 per week pendente lite maintenance; as so modified, the order dated November 1, 1993, is affirmed insofar as appealed from, without costs or disbursements; and it is further,

Ordered that the order dated August 12, 1993, is affirmed insofar as appealed from, without costs or disbursements.

Pendente lite maintenance is "designed to insure that a needy spouse is provided with funds for his or her support and reasonable needs pending trial" (Cohen v Cohen, 129 A.D.2d 550; see also, Shapiro v Shapiro, 163 A.D.2d 294). In order to achieve this purpose, a court must make the financial need of the spouse requesting pendente lite maintenance its primary consideration (McCarthy v McCarthy, 156 A.D.2d 346). The respective financial conditions of the parties and the pre-separation standard of living should also be considered in the grant of pendente lite maintenance (see, Byer v Byer, 199 A.D.2d 298; Kessler v Kessler, 195 A.D.2d 501; Polito v Polito, 168 A.D.2d 440). We find that certain of plaintiff's monthly expenses were excessive or unnecessary, and therefore, the award of pendente lite maintenance was excessive.

Domestic Relations Law § 237 allows the court to grant interim counsel fees "in the court's discretion" (Domestic Relations Law § 237 [a] [5]). The Court of Appeals has recognized that awarding counsel fees is discretionary under this section (see, DeCabrera v Cabrera-Rosete, 70 N.Y.2d 879). In this case, the plaintiff has no independent source of income. Without the grant of interim counsel fees, the plaintiff would not be able to carry on this litigation. Accordingly, we find that the court acted within its discretion for the purpose of awarding interim counsel fees. Bracken, J.P., Balletta, Copertino and Hart, JJ., concur.