Mitzner v. Mitzner

228 A.D.2d 483, 643 N.Y.2d 674, 643 N.Y.S.2d 674, 1996 N.Y. App. Div. LEXIS 6602

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 10, 1996
• Status: Published

Opinion

The Supreme Court did not err in granting the defendant temporary exclusive possession of the marital residence given the domestic strife caused by the plaintiffs presence in the home and the fact that he had voluntarily established an alternative residence (see, Annexstein v Annexstein, 202 AD2d 1062; Kristiansen v Kristiansen, 144 AD2d 441, 442; Wolfe v Wolfe, 111 AD2d 809, 810).

It was not an improvident exercise of discretion to award the defendant interim counsel fees without a showing of need (see, DeCabrera v Cabrera-Rosete, 70 NY2d 879; Anonymous v Anonymous, 213 AD2d 183). The defendant was not required to exhaust her own capital in order to qualify for an interim counsel fee award (see, Lieberman v Lieberman, 187 AD2d 567; Cole v Cole, 182 AD2d 738). Given the financial circumstances of the parties, the award of counsel fees was a proper exercise of the Supreme Court’s discretion (see, Ljutic v Ljutic, 216 AD2d 274; Roach v Roach, 193 AD2d 660). Miller, J. P., Copertino, Santucci and Altman, JJ., concur.