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Defendant Appeals Judgment Restraining Him from Withdrawing Funds from Investment Account

A New York Family Lawyer said in an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County, as granted that branch of the plaintiff’s motion which was to enjoin and restrain him from withdrawing any funds from an investment account into which the proceeds of a medical malpractice action settlement were deposited to the extent of limiting his withdrawals to the sum of only $4,627 per month and denied those branches of his cross motion which were for awards of pendente lite child support and an attorney’s fee.

A New York Custody Lawyer said that the relevant facts are set forth in a related appeal. An appellate court should rarely modify a pendente lite award, and then ” only under exigent circumstances, such as where a party is unable to meet his or her financial obligations, or justice otherwise requires”. Further, pendente lite awards “should be an accommodation between the reasonable needs of the moving spouse and the financial ability of the other spouse with due regard for the pre-separation standard of living” “Any perceived inequities in pendente lite support can best be remedied by a speedy trial, at which the parties’ financial circumstances can be fully explored”. Here, in denying that branch of the defendant’s cross motion which was for an award of pendente lite child support, the Supreme Court properly considered the defendant’s actual reasonable living expenses, and there are no exigent circumstances sufficient to disturb the Supreme Court’s determination on this issue. Accordingly, the Supreme Court properly denied that branch of the defendant’s cross motion which was for an award of pendente lite child support.

The Supreme Court properly denied that branch of the defendant’s cross motion which was for an award of an interim attorney’s fee.

A Nassau County Family Lawyer said in the related appeal, the defendant appealed from so much of an order, as, upon reargument, adhered to its original determination in an order, which, in effect, and in pertinent part, determined that the unallocated net settlement proceeds of a medical malpractice action received by the parties during their marriage in the principal sum of $4.8 million were separate property, and that the allocation of that property between the parties would be determined at trial. We are reversing the order insofar as appealed from on the ground that the parties’ deposit of the unallocated net settlement proceeds into a joint investment account, funds made payable to both parties, gave rise to a presumption that the proceeds were transmuted into marital property, and we are remitting the matter to the Supreme Court, Nassau County, for a determination, at trial, as to whether the plaintiff can rebut this presumption. Since the determination that the settlement proceeds were separate property, which determination underlies the order appealed from herein, is no longer in effect, we remit this matter to the Supreme Court, Nassau County, for a new determination of that branch of the plaintiff’s pendente lite motion which was to enjoin and restrain the defendant from withdrawing any money from an investment account funded with a portion of the subject unallocated net settlement proceeds. In the interim, so much of the order, as enjoined and restrained the defendant from withdrawing any funds from the subject investment account in excess of $4,627 per month shall remain in effect.

The Court decline the plaintiff’s request for the imposition of sanctions against the defendant in connection with this appeal.

In another case, a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Nassau County, which denied his objections to an order of the same court, which, after a hearing, denied his petition for a downward modification of his child support obligation.

The Court ordered that the order, is reversed, on the law, with costs, the objections are granted, the order, is vacated, and the matter is remitted to the Family Court, Nassau County, for further proceedings consistent herewith.

A court may modify the child support provisions of a separation agreement incorporated but not merged into a judgment of divorce when a party has alleged and proven an unanticipated change in circumstances since entry of the judgment. The Family Court erred in concluding that the father’s loss of income for reasons beyond his control, increased expenses due to an uninsured hospital stay, and the change in the custody arrangement from the mother having primary residential custody of the parties’ two children to split residential custody, was not an unanticipated change of circumstances creating the need for modification of his child support obligation. Accordingly, the matter must be remitted to the Family Court, Nassau County, for a new hearing to determine the father’s reduced child support obligation.

During the pendency of marital actions, a support pendent lite should be ordered by the Court. Here in Stephen Bilkis and Associates, our Nassau County Spousal Support attorneys will help a spouse be entitled to such support pending action. We also have our Nassau County Family lawyers who will be helping you in other concerns on family matters.

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