Opinion
January 31, 1995
Appeal from the Supreme Court, New York County (David Saxe, J.).
The IAS Court did not err in directing the defendant-husband to pay the plaintiff-wife interim counsel fees in accordance with Domestic Relations Law § 237 (a), which provides that a court may direct either spouse to pay the other counsel's fees in a matrimonial 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 N.Y.2d 879, 881). Here, the disparate financial circumstances of the parties and the plaintiff's inability to pay her own counsel justified the court's exercise of its discretion in awarding interim fees in order to enable movant, the less affluent spouse, to prosecute or defend the action (see, Wyser-Pratte v Wyser-Pratte, 160 A.D.2d 290, 291).
Nor did the IAS Court improvidently exercise its discretion in awarding plaintiff pendente lite tax-free maintenance in the underlying matrimonial action since it is within the sound discretion of the court, pursuant to Internal Revenue Code (26 USC) § 71 (b) (1) (B), to provide in its order that the maintenance payments be neither income to the plaintiff nor deductible to the defendant for taxation purposes. (Lasry v Lasry, 180 A.D.2d 488, 489.)
In awarding temporary maintenance, the IAS Court carefully considered and balanced the factors enumerated in Domestic Relations Law § 236 (B) (6), including the financial status of the respective parties, the nature and duration of the marriage, and the future capacity of the plaintiff to be self-supporting (Baker v. Baker, 120 A.D.2d 374), and was guided by the fact that the defendant-husband herein had, for approximately three years, been providing the plaintiff-wife a tax-free allowance (Hills v. Hills, 182 A.D.2d 584; Wexler v. Wexler, 162 A.D.2d 326).
Where, as here, the court has given due consideration to the disparate financial circumstances of the parties, the resulting awards will not be disturbed on appeal (King v. King, 183 A.D.2d 479), since it is well settled that any alleged inequity in the award of pendente lite maintenance or interim counsel fees should be remedied by a speedy trial rather than an appeal (Wechsler v. Wechsler, 199 A.D.2d 51, 52).
Concur — Sullivan, J.P., Ellerin, Rubin and Williams, JJ.