Summary
In Francis, the amounts were not stated, but the appellate court allowed for the calculation on remand, as well as an articulation of "any other factors" the court "may consider in deviating from the presumptive award," adding that "award of maintenance should be made effective as of the date of application," presumably, at least allowing for the possibility of a monetary award.
Summary of this case from Sasha T. v. Barry T.Opinion
2013-11-12
Marcia FRANCIS, Plaintiff–Appellant, v. Gladstone A. FRANCIS, Defendant–Respondent.
Roberta Horne, Bellerose, for appellant. Christopher W. Edwards, Bronx, for respondent.
Roberta Horne, Bellerose, for appellant. Christopher W. Edwards, Bronx, for respondent.
ANDRIAS, J.P., ACOSTA, SAXE, RENWICK, MANZANET–DANIELS, JJ.
Order, Supreme Court, Bronx County (Nelida Malave– Gonzalez, J.), entered October 19, 2012, which awarded plaintiff $868.66 bi-weekly in temporary maintenance, and denied plaintiff's request for counsel and appraisal fees, unanimously reversed, on the law, without costs, the award of temporary maintenance vacated, and the matter remanded for a reconsideration of the award in light of the directives of Domestic Relations Law § 236(B)(5–a), and for a reconsideration of the request for counsel and appraisal fees.
To determine temporary maintenance, the motion court had to apply Domestic Relations Law § 236(B)(5–a), which had become effective on October 12, 2010. While the motion court properly followed the calculations provided in that section to arrive at a presumptive award of temporary maintenance, it did not address the fact that defendant was paying the carrying costs on the marital residence, where both parties still reside, and that plaintiff specifically requested an order directing that defendant continue to pay those costs, as well as her unreimbursed medical expenses ( see Khaira v. Khaira, 93 A.D.3d 194, 197, 938 N.Y.S.2d 513 [1st Dept. 2012]; Woodford v. Woodford, 100 A.D.3d 875, 877, 955 N.Y.S.2d 355 [2nd Dept. 2012]; see also H.G. v. N.K., 40 Misc.3d 1242[A], 2013 WL 5218056 [Sup.Ct., Kings County 2013] ). Significantly, this Court has viewed the “formula adopted by the new maintenance provision as covering all the spouse's basic living expenses, including housing costs” (Khaira, 93 A.D.3d at 200, 938 N.Y.S.2d 513). Accordingly, we vacate the award and remand the matter for a reconsideration of the award in light of the directives of Domestic Relations Law § 236(B)(5–a).
We note that in reconsidering the award of temporary maintenance, the motion court should consider the payment of these carrying costs on the marital residence, half of which should be credited to defendant in calculating the award. The court should also articulate any other factors it may consider in deviating from the presumptive award, including plaintiff's medical condition and her inability to work. Any award of maintenance should be made effective as of the date of application (see Domestic Relations Law § 236[B][6][a]; Nacos v. Nacos, 96 A.D.3d 579, 947 N.Y.S.2d 89 [1st Dept. 2012]; H.K. v. J.K., 32 Misc.3d 1226[A] n. 4, 2011 WL 3274257 [Sup.Ct., New York County 2011] ).
Given the rebuttable presumption that counsel fees shall be awarded to the less monied spouse (DRL § 237), we also remand for a reconsideration of plaintiff's request for counsel and appraisal fees. The motion court's denial of those requests was based on the now vacated award and a mathematical error in the calculation of the parties' respective incomes following the award of temporary maintenance.