York v. York

295 A.D.2d 503, 745 N.Y.S.2d 692, 2002 N.Y. App. Div. LEXIS 6622

Opinion

—On the Court’s own motion, it is

Ordered that the unpublished decision and order of this Court, dated April 8, 2002, in the above-entitled case under Appellate Division Docket No. 2000-11161 is recalled and vacated, and the following decision and order is substituted therefor:

In an action for a divorce and ancillary relief, the plaintiff appeals, by permission, from an order of the Supreme Court, Queens County (Dorsa, J.), dated September 12, 2000, which directed a hearing to be held at the time of trial on her motion for a judgment for pendente lite arrears and for an award of counsel fees, and on the defendant’s cross motion for downward modification of a pendente lite order of the same court dated January 25, 1999.

Ordered that the order is modified by deleting the provision thereof directing that the hearing be held at the time of trial; as so modified, the order is affirmed, without costs or disbursements.

The plaintiff moved for a money judgment for arrears for temporary maintenance, child support, carrying charges on the marital home, and medical and other expenses which accrued pursuant to a pendente lite order dated January 25, 1999, and for counsel fees. The defendant cross-moved for a downward modification of the pendente lite order. The Supreme Court directed a hearing on the issues raised in the motion and cross motion to be held at the time of trial.

Subsequently, however, this Court modified the pendente lite order dated January 25, 1999, because it appeared “that the cumulative pendente lite financial obligations imposed upon the defendant * * * exceed his income” (York v York, 276 AD2d 481, 482). The matter was remitted to the Supreme Court, Queens County, for a hearing with respect to temporary maintenance, carrying charges on the marital residence, and unreimbursed medical expenses. That hearing has not yet been held. The Supreme Court’s award of temporary child support in the sum of $1,666 per month was not disturbed.

As indicated in the plaintiffs motion, the defendant has made some pendente lite payments. Those payments exceed the temporary child support award. Consequently, there are no child support arrears. The plaintiff is not entitled to any pendente lite arrears for the other items until a hearing is held at which time the plaintiffs request for counsel fees may also be considered (see York v York, supra). However, the hearing should be held as directed in this Court’s prior order (see York v York, supra), rather than at the time of trial. Prudenti, P.J., Altman, S. Miller and Cozier, JJ., concur.