Birnbaum v. Birnbaum

New York Supreme Court

Birnbaum v. Birnbaum

113 Misc. 2d 487, 449 N.Y.S.2d 424, 1982 N.Y. Misc. LEXIS 3324

CourtNew York Supreme Court

DecidedApril 12, 1982

StatusPublished

Cited by2 cases

This text of 113 Misc. 2d 487 (Birnbaum v. Birnbaum) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Birnbaum v. Birnbaum, 113 Misc. 2d 487, 449 N.Y.S.2d 424, 1982 N.Y. Misc. LEXIS 3324 (N.Y. Super. Ct. 1982).

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Opinion

OPINION OF THE COURT

William R. Geiler, J.

In this action governed by the equitable distribution law, plaintiff moves for an order directing defendant to pay plaintiff a sum of money to enable her to secure the services of a pension actuary and a real estate appraiser. It appears that the parties jointly own a parcel of real estate in East Moriches, New York, and that the defendant husband is employed as a postmaster and has a pension plan with the United States Federal retirement system.

Since the enactment of the New York equitable distribution law, the necessity for awarding a needy spouse a sum of money to secure the services of certain professional appraisers for the purpose of valuing marital assets subject to an equitable distribution thereof has been recognized (Gueli v Gueli, 106 Misc 2d 877 [valuing a business]; Fay v Fay, 108 Misc 2d 373 [interim award made to enable needy spouse to secure services of pension actuary]; Heber v Heber, 112 Misc 2d 799 [pension actuary award]).

It is anticipated that the majority, if not most, of such applications shall be made in a motion where other pendente lite relief, such as temporary maintenance, child support and counsel fees, will be sought. In such a situation in the Second Judicial Department, the moving spouse must include in his or her moving papers an “Affidavit on Motion for Counsel Fee, Temporary Alimony, Child Sup[488]*488port or any Modification of an Award Thereof” (22 NYCRR 699.11) in the official form prescribed by said section. Such form enables the court to make observations concerning the financial needs of the parties to the action, and determine need, if any. The court holds that the same requirement applies to applications made for interim awards of fees to secure the services of such appraisers.

Here, the only relief requested in this motion is that which is detailed above. Accordingly, this motion is denied with leave to renew upon including a current affidavit in the form prescribed by 22 NYCRR 699.11.

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OPINION OF THE COURT

William R. Geiler, J.

In this action governed by the equitable distribution law, plaintiff moves for an order directing defendant to pay plaintiff a sum of money to enable her to secure the services of a pension actuary and a real estate appraiser. It appears that the parties jointly own a parcel of real estate in East Moriches, New York, and that the defendant husband is employed as a postmaster and has a pension plan with the United States Federal retirement system.

Since the enactment of the New York equitable distribution law, the necessity for awarding a needy spouse a sum of money to secure the services of certain professional appraisers for the purpose of valuing marital assets subject to an equitable distribution thereof has been recognized (Gueli v Gueli, 106 Misc 2d 877 [valuing a business]; Fay v Fay, 108 Misc 2d 373 [interim award made to enable needy spouse to secure services of pension actuary]; Heber v Heber, 112 Misc 2d 799 [pension actuary award]).

It is anticipated that the majority, if not most, of such applications shall be made in a motion where other pendente lite relief, such as temporary maintenance, child support and counsel fees, will be sought. In such a situation in the Second Judicial Department, the moving spouse must include in his or her moving papers an “Affidavit on Motion for Counsel Fee, Temporary Alimony, Child Sup[488]*488port or any Modification of an Award Thereof” (22 NYCRR 699.11) in the official form prescribed by said section. Such form enables the court to make observations concerning the financial needs of the parties to the action, and determine need, if any. The court holds that the same requirement applies to applications made for interim awards of fees to secure the services of such appraisers.

Here, the only relief requested in this motion is that which is detailed above. Accordingly, this motion is denied with leave to renew upon including a current affidavit in the form prescribed by 22 NYCRR 699.11.

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Bluebook (online)

113 Misc. 2d 487, 449 N.Y.S.2d 424, 1982 N.Y. Misc. LEXIS 3324, Counsel Stack Legal Research, https://law.counselstack.com/opinion/birnbaum-v-birnbaum-nysupct-1982.

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