Published on:

Tzu Ching Kao v. Bonalle

2016 NY Slip Op. 08222

Decision

This appeal was brought by the plaintiff from an order of the Supreme Court of Queens County, October 16, 2014. The order granted portions of the motion which awarded child support and maintenance payments in the amount of $4,887. And $1965. Respectively.

The court affirms with costs.

The parties married in have one child between them. In 2013, the plaintiff filed for a divorce. The Supreme Court granted portions of the plaintiff’s motion awarding spousal support and maintenance. The plaintiff filed this appeal contending that she is entitled to a pendant lite award.

The court said that modifications of a pendente lite award are rarely made by an appellate court, and only then when there are circumstances that dictate it, such as when a party is unable to pay. Any discrepancies in a pendente lite award can be fixed via a speedy trial, where a financial situation can be analyzed (Dowd v. Dowd 74 AD3d 1014).

In this case it appears that an adjustment may be needed when the final judgement is made (Domestic Relations Law 236 [B][5-a][c][1][d]; 240 [1-b][b][5][vii][c]. The plaintiff has proven the need for a final adjustment.

Understanding Maintenance

Generally, maintenance is another word used to describe spousal support or alimony and is defined in Domestic Relations Law 236 Part B (6), 5-a, as well as in the Family Court Act 412. Maintenance can only be paid and received between current or previous spouses, and must be either ordered by the court or made via a written agreement.

In DRL 236B(1)(a), maintenance is defined as the payment from one spouse to another due to a court order or written agreement. In order to qualify for maintenance, three elements must be present: 1) the payment must be made in cash. Most all methods of payment are deemed acceptable except and exchange for goods and services, 2) the payment must be made between former or current spouses 3) the payment must be made under a written agreement or court order.

Understanding Pendente Lite Awards

Pendente lite awards are considered to be temporary maintenance and is made to sustain the parties when the divorce case in pending.

It is important to note that pendente lite actions have undergone changes in the recent past. For actions between 10/12/10-10/24/15, pendente lite maintenance was calculated pursuant to DRL 236B(5-a). This statute has changed and wont apply to matters filed after 10/25/15.

Before 2010, pendente lite alimony (maintenance) was entirely up to the court’s discretion. Temporary support could range from pure direct support, to any number of directives made by the court. The court may direct a spouse to pay certain ongoing bills for instance. The idea behind the pendente lite maintenance was to tide the parties over until the divorce was final (Lannone v. Lanonne 31 AD3d 713, 820 N.Y.S. 2d 86).

The court would put this temporary maintenance in place as it was impossible to know the full financial situation of the parties.

In 2010, the court abandoned this discretionary approach and adopted a mathematical formula (DRL 236B (5-a). The provisions of this code section was again amended and doesn’t apply to new cases. As of 2015, a new formula was adopted (DRL 236 [B][5-a].

Under the old approach, only the amount of the party’s income was taken into account. Now however, the courts will consider other factors such as the age and health of the parties, and the length of the marriage.

Retroactive Awards

It is used to be that a final support order was retroactive to the date that the summons and complaint was served. Pendente lite support would be retroactive to the date of the motion. In a pendente lite, any payments made will be credited to determine the amount. Payments that exceed the final amount are not entitled to a credit (Rogers v. Rogers 98 AD2d 286 (2nd dept. 1983) Overpayments can be offset via an adjustment by the court (Johnson v Chapin NY 3d 2009, WL 1227869 (2009).

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