Opinion
16822 Index No. 321789/20 Case No. 2021–02063
12-08-2022
Jessica MURRAY, Plaintiff–Respondent, v. Hamidur RASHID, Defendant–Appellant.
Hamidur Rashid, appellant pro se. John Teufel, Kew Gardens, for respondent.
Hamidur Rashid, appellant pro se.
John Teufel, Kew Gardens, for respondent.
Kapnick, J.P., Oing, Singh, Moulton, Pitt–Burke, JJ.
Order, Supreme Court, New York County (Kelly O'Neill Levy, J.), entered on or about May 13, 2021, which, to the extent appealed from as limited by the briefs, granted, in part, plaintiff wife's motion for child support, half the carrying costs of the parties’ marital residence, and past and reasonable prospective counsel fees, unanimously modified, on the law, to the extent of vacating the award of counsel fees, and otherwise affirmed, without costs. We decline to disturb the pendente lite award. As to the child support award, the husband has not shown that there are exigent circumstances necessitating a different award, nor has he shown that Supreme Court failed to consider the appropriate factors when it determined the award, which was derived from the parties’ imputed incomes (see Strauss v. Saadatmand, 89 A.D.3d 415, 416, 931 N.Y.S.2d 611 [1st Dept. 2011] ). As to the award regarding payments on the marital residence, the court did not, despite the husband's contention otherwise, effectively award maintenance to the wife when it ordered the parties to share equally in payment of the mortgage, maintenance, and taxes. Both the husband and wife hold the mortgage and are obliged to make these payments, and failure to remit them could result in foreclosure on the parties’ largest asset. The court providently exercised its discretion in directing that both parties share equally the cost of resolving the stop-work orders on the marital residence and in bringing it into code compliance. "It is generally the responsibility of both parties to maintain the marital [residence] ... during the pendency of a matrimonial action" and the award will preserve the marital asset until it is sold ( Barra v. Barra, 191 A.D.3d 831, 832, 138 N.Y.S.3d 377 [2d Dept. 2021] ). Additionally, the award will provide an incentive for the husband to cooperate in moving the action forward and facilitating the sale of the residence (see Burke v. Burke, 175 A.D.3d 458, 460, 109 N.Y.S.3d 54 [2d Dept. 2019] ).
However, it was not a provident exercise of the court's discretion to award counsel fees to the wife ( Domestic Relations Law § 237 ). Although the wife is the less monied spouse, the presumption of entitlement to counsel fees is rebuttable, and the disparity in the parties’ incomes is not so great that the wife was unable to obtain and pay for adequate representation (see Roddy v. Roddy, 161 A.D.3d 441, 442, 76 N.Y.S.3d 141 [1st Dept. 2018] ). Furthermore, there was no finding by the court that the husband had engaged in dilatory practices increasing the wife's counsel fees (see Gallen v. Gallen, 183 A.D.3d 425, 426, 123 N.Y.S.3d 579 [1st Dept. 2020] ).