Ahern v. Ahern

94 A.D.2d 53, 463 N.Y.S.2d 238, 1983 N.Y. App. Div. LEXIS 17949
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJune 6, 1983
StatusPublished
Cited by80 cases

This text of 94 A.D.2d 53 (Ahern v. Ahern) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ahern v. Ahern, 94 A.D.2d 53, 463 N.Y.S.2d 238, 1983 N.Y. App. Div. LEXIS 17949 (N.Y. Ct. App. 1983).

Opinion

OPINION of the court

Mangano, J.

On this appeal, we are asked to delineate the permissible scope of pendente lite fees to be awarded in matrimonial actions governed by the Equitable Distribution Law (see Domestic Relations Law, § 236, part B).

I

Plaintiff and defendant were married in 1960 and three children were born of that union. Plaintiff commenced the instant action for divorce in February, 1982 on the grounds of cruel and inhuman treatment and abandonment. As ancillary relief, plaintiff requested, inter alia, maintenance for herself, child support and counsel fees.

[54]*54Defendant interposed a verified answer denying the allegations of the complaint and thereafter served on plaintiff’s counsel a “Statement of Net Worth as of April 30, 1982”.

By notice of motion dated October 26, 1982 plaintiff moved for an order directing the defendant to pay: (1) counsel fees, pendente lite, in the sum of $35,000; (2) fees for an accountant’s services, pendente lite, in the sum of $15,000; and (3) fees for a real estate appraiser’s services, pendente lite, in the sum of $10,000.

The affidavits in support of plaintiff’s motion indicated, inter alia, that: (1) a marked discrepancy exists between defendant’s statements of net worth and his 1980 tax return and (2) defendant has extensive financial holdings in commercial paper, securities, various business ventures, and real estate. Affidavits were submitted by plaintiff’s counsel, as well as a reputable accountant and real estate appraiser attesting to the need for an in-depth inquiry into defendant’s records in order to properly prepare plaintiff’s case. Plaintiff also submitted her own affidavit wherein she asserted that other than her interest in the marital residence, she had no assets or income with which to pay counsel and necessary experts.

In opposition to plaintiff’s motion, defendant argued, inter alia, that the plaintiff’s motion was premature and that “the best time to apply for allowances for legal services and related services is after the trial when the court is aware of the necessary number of hours spent, and the results accomplished”

In disposing of plaintiff’s motion, Special Term (1) awarded plaintiff a pendente lite fee of $1,000 for an accountant’s services; (2) awarded plaintiff a pendente lite fee of $500 for a real estate appraiser’s services; and (3) referred plaintiff’s application for counsel fees, pendente lite, to the trial court.

II

Under part B of section 236 of the Domestic Relations Law, commonly known as the Equitable Distribution Law, the courts are mandated to make an equitable disposition of the marital property of the parties in the final judgment. [55]*55Specifically, the statute provides as follows (Domestic Relations Law, § 236, part B, subd 1, par c; subd 5, pars a, c, d, cls [l]-[9]):

“c. The term ‘marital property’ shall mean all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held, except as otherwise provided in agreement pursuant to subdivision three of this part. Marital property shall not include separate property as hereinafter defined * * *

“5. Disposition of property in certain matrimonial actions.

“a. Except where the parties have provided in an agreement for the disposition of their property pursuant to subdivision three of this part, the court, in an action wherein all or part of the relief granted is divorce, or the dissolution, annulment or declaration of the nullity of a marriage, and in proceedings to obtain a distribution of marital property following a foreign judgment of divorce, shall determine the respective rights of the parties in their separate or marital property, and shall provide for the disposition thereof in the final judgment * * *

“c. Marital property shall be distributed equitably between the parties, considering the circumstances of the case and of the respective parties * * *

“d. In determining an equitable disposition of property under paragraph c, the court shall consider:

“(1) the income and property of each party at the time of marriage, and at the time of the commencement of the action;

“(2) the duration of the marriage and the age and health of both parties;

“(3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;

“(4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;

“(5) any award of maintenance under subdivision six of this part;

[56]*56“(6) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;

“(7) the liquid or non-liquid character of all marital property;

“(8) the probable future financial circumstances of each party;

“(9) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party”.

The court is further mandated to “set forth the factors it considered and the reasons for its decision” (Domestic Relations Law, § 236, part B, subd 5, par g).

Pursuant to this statutory scheme it is quite clear that the parties “must be prepared to present evidence” (Roussos v Roussos, 106 Misc 2d 583, 585) regarding the exact nature and value of the marital property in order to assist the court in reaching its determination. Accordingly, it has been held that both parties in a matrimonial action governed by the Equitable Distribution Law are now entitled to: “a searching exploration of each other’s assets and dealings at the time of and during the marriage, so as to delineate the extent of ‘marital property’, distinguish it from ‘separate property’, uncover hidden assets of ‘marital property’, discover possible waste of‘marital property’, and in general gain any information which may bear on the issue of equitable distribution, as well as maintenance and child support. The entire financial history of the marriage must be open for inspection by both parties. It is simply no longer true that the current financial status of the parties is all that counts” (Roussos v Roussos, 106 Misc 2d 583, 584-585, supra; see, also, Gueli v Gueli, 106 Misc 2d 877; Fay v Fay, 108 Misc 2d 373; Litman v Litman, 115 Misc 2d 230).

[57]*57Moreover, the provisions of the Equitable Distribution Law will inevitably present the courts with a host of complex issues involving the tracing and evaluation of marital property thereby requiring protracted involvement by counsel, as well as various experts, i.e., accountants, appraisers, and actuaries, in many instances (Shainswit, Some Thoughts from the Bench on Equitable Distribution, NYLJ, April 6, 1981, p 1, col 2). As stated by the court in Litman v Litman

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Bluebook (online)
94 A.D.2d 53, 463 N.Y.S.2d 238, 1983 N.Y. App. Div. LEXIS 17949, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ahern-v-ahern-nyappdiv-1983.