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Kathleen Donelli, White Plains lawyer, Pendente Lite Motions

MOTION PRACTICE: PENDENTE LITE MOTIONS
By: Kathleen Donelli, Esq.
TABLE OF CONTENTS
I. When To Make A Pendente Lite Motion
II. Sample Order To Show Cause, Client's Affidavit and Attorney's Affirmation
III. What To Ask For
A. Maintenance
B. Child Support
C. Custody
D. Restraint of Assets
E. Exclusive Use and Occupancy
F. Experts' Fees
G. Attorneys' Fees
H. Applicable Statutes and Rules
I. Credits
J. Effect of Denial of Relief
IV. Oral Arguments
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I. When To Make a Pendente Lite Motion
A. Before making a pendente lite motion, counsel needs a completed,
thorough and accurate Statement of Net Worth and should consider
the following:
• the parties' financial status quo
• is the motion necessary to maintain the financial status quo
• could relief be agreed to by stipulation and/or at a preliminary
conference
• will a letter to opposing counsel proposing interim support be effective
• will negotiations on interim support take more time than a pendente lite
motion
• is the financial cost of the motion justified
• what is the likelihood of success on the merits
• will the motion help or hurt the resolution of the matrimonial action
• can the action be resolved quickly.
B. Preliminary Conference
The Rules specifically provide that motions for interim relief may be made at the
preliminary conference. 22 NYCRR Sec. 202.16(f)(2). The Rules encourage that
motions for interim child support and/or maintenance be made in the context of the
preliminary conference. See, 22 NYCRR Sec. 202.16(k)(1): "Such motion shall be
made before or at the preliminary conference, if practicable." The preliminary
conferences are often used as a tool to pressure a negotiated interim order. Although
the Rules provide for motions to be made at these conferences, the Rules do not
suspend the formalities of motion practice.
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C. You must make a pendente lite motion if:
• your client needs an immediate temporary order of protection
• the payor spouse refuses to maintain the financial status quo or
discontinues life and/or medical insurance
• your client wants temporary support to be effective as early as possible
(i.e., temporary support orders are retroactive to the date of
application)
• future events may be less favorable to your client's position (e.g., payor
spouse's employment contract terminates in six months)
• there is an emergency (e.g., need to restrain the transfer or dissipation
of assets; car lease terminates; trip to Israel with the children; roof
needs repair; child needs tuition)
II. Sample Order To Show Cause, Client's Affidavit and Attorney's Affirmation
III. What To Ask For
A. Maintenance
1. The general purpose of a temporary award of maintenance is to
address the reasonable needs of the parties. The primary consideration should be the
actual financial needs of the moving party. Ferdinand v. Ferdinand, 215 A.D.2d 350,
625 N.Y.S.2d 650 (2d Dept. 1995).
2. The Court is not required to consider the statutory factors in DRL
236(B)(6)(a) in determining an application for interim maintenance, which is designed to
meet the reasonable needs of the needy spouse. Basch v. Basch, 114 A.D.2d 829, 494
N.Y.S.2d 740 (2d Dept. 1985).
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3. While the prior standard of living is a relevant factor in determining
a temporary award, the movant's actual financial need is also a significant factor. Aron
v. Aron, 216 A.D.2d 98, 628 N.Y.S.2d 102 (1st Dept. 1989).
4. The fact that the parties continue to reside in the same household
after the commencement of a matrimonial action does not preclude temporary
maintenance or child support. Salerno v. Salerno, 142 A.D.2d 670, 531 N.Y.S.2d 101
(2d Dept. 1988); Koerner v. Koerner, 170 A.D.2d 297, 566 N.Y.S.2d 23 (1st Dept.
1991).
5. Is temporary maintenance taxable to the recipient and tax
deductible to the payor? Court can direct in order that maintenance payments are not
taxable to the recipient.
"If the spouses are subject to temporary support orders (as
described in Sec. 71 (b)(2)(C)), the designation of otherwise
qualifying alimony or separate payments as nondeductible
and excludible must be made in the original or a subsequent
temporary support order." Treas. Reg. Sec. 1.7 1 -IT, A-8
See, Lasry v. Lasry, 180 A.D.2d 488, 579 N.Y.S.2d 393 (1st Dept. 1992): "Finally, it
was within the sound discretion of the IAS court, pursuant to Internal Revenue Service
Temporary Regulation (26 CFR) Sec. 1.71-IT(a) to provide that the maintenance
payments be neither deductible to him nor taxable to the plaintiff."
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B. Child Support
1. The Child Support Standards Act does not strictly apply to
temporary orders of child support as it does in final orders. The structure of temporary
child support is entirely within the discretion of the Court. Rizzo v. Rizzo 163 A.D.2d 15,
558 N.Y. S.2d 12 (1st Dept 1990).
C. Custody
1. Ex parte orders of temporary custody are generally granted only if
there is a compelling reason for the Court to do so (e.g., domestic violence, child's
special needs).
2. If the situation is serious and requires intervention before the return
date of the Order to Show Cause, consider requesting the ex parte appointment of a law
guardian.
3. The general rule is that temporary orders of custody and visitation
should not be granted without a hearing. Hizme v. Hizme, 212 A.D.2d 580, 622
N.Y.S.2d 737 (2d Dept. 1995); Alberts v. Alberts, 168 A.D.2d 1004, 565 N.Y.S.2d 945
(4th Dept. 1990). However, I've never had a hearing because temporary custody is
usually ordered ex parte and then continued by stipulation.
D. Restraint of Assets
1. The purpose of restraining orders on assets in a matrimonial action
is to preserve the status quo of marital property pending equitable distribution. The
movant must illustrate that his or her spouse is attempting or threatening to dispose of
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marital assets so as to adversely affect the movant's ultimate rights in equitable
distribution. Kroteya v. Kroteya, 170 A.D.2d 371, 566 N.Y.S.2d 265 (1st Dept. 1991).
2. DRL Sec. 234 authorizes a Court to issue pendente lite injunctive
relief in a marital action without requiring the movant to make the requisite showing
normally required by CPLR Article 63: irreparable harm and a likelihood of success on
the merits. However, a prerequisite to the issuance of such an order is a showing by
the movant that the party to be restrained is attempting or threatening to dispose of
marital assets so as to adversely affect the movant's ultimate rights in equitable
distribution. Loderhose v. Loderhose, 216 A.D.2d 275, 627 N.Y.S.2d 453 (2d Dept
1995). Maillard v. Maillard, 211 A.D.2d 963, 62 N.Y.S.2d 715 (3d Dept. 1995).
3. It is error for the Court to issue sua sponte a preliminary injunction
restraining a party from transferring or encumbering property other than in the course of
ordinary business, as due process requires that the party so enjoined receive notice that
the court will consider such a remedy. Holmes v. Holmes, 151 A.D.2d 911, 542
N.Y.S.2d 884 (3rd Dept. 1989); Monroe v. Monroe 108 A.D.2d 793, 485 N.Y.S.2d 310
(2d Dept. 1985).
E. Exclusive Use and Occupancy
1. The movant must demonstrate that a directive for the exclusive
possession of the marital home pendente lite is necessary to protect the safety of
persons (i.e., the movant and/or the children) or of property. Goodson v. Goodson, 135
A.D.2d 604, 522 N.Y.S.2d 182 (2d Dept 1987); Tessitore v. Tessitore, 140 A.D.2d 786,
527 N.Y.S.2d 888 (3rd Dept. 1988).
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2. Under appropriate circumstances, a court may award exclusive
possession of the marital residence pendente lite where one spouse has caused
domestic strife and has voluntarily established an alternative residence. Annexstein v.
Annexstein, 202 A.D.2d 1062, 609 N.Y.S.2d 132 (4th Dept. 1994).
3. The general rule is that exclusive possession, pendente lite should
not be granted without a hearing. Formato v. Formato 173 A.D.2d 274, 569 N.Y.S.2d
665 (1st Dept. 1991). However, exclusive use and occupancy may properly be awarded
without a hearing upon a sufficient showing of abuse that is supported by uncontroverted
medical evidence. Preston v. Preston, 147 A.D.2d 464, 537 N.Y.S.2d 824 (2d Dep’t
1989), see also Fakiris v. Fakiris, 177 A.D.2d 540, 575 N.Y.S.2d 924 (2d Dep’t 1991);
Harrilal v. Harrilal, 128 A.D.2d 502, 512 N.Y.S.2d 433 (2d Dep’t 1987); King v. King, 109
A.D.2d 779, 486 N.Y.S.2d 291 (2d Dep’t 1985).
4. Is domestic strife sufficient to obtain exclusive occupancy of the
martial residence?
F. Experts' Fees
1. DRL §237 provides the statutory authority for the Court to award
counsel fees and expenses upon proper application.
2. DRL § 237(d) defines "expenses" to include accountant fees,
actuarial fees, etc. The four factors to be considered by the Court in determining the
propriety of an application for "expenses":
a. The nature of the marital property involved;
b. The difficulties involved, if any, in identifying and
evaluating the marital property;
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c. The services rendered and an estimate of the time
involved; and
d. The applicant's financial status.
3. Thus, a proper application for expert fees must include an affidavit
of the expert satisfying the four elements of DRL § 237(d). Failure to set forth the
required elements will result in the denial of the motion. Coppola v. Coppola, 129
A.D.2d 760, 514 N.Y.S.2d 754 (2d Dept).
4. The Matrimonial Rules provide the authority for the Court to appoint
an expert to give testimony with respect to equitable distribution or custodial issues. The
cost of such expert witness shall be paid by a party or parties as the court shall direct.
22 NYCRR § 202.18.
5. The Court may direct at the preliminary conference that a list of
expert witnesses be filed with the Court within thirty days of the conference from which
the Court may select a neutral expert to assist the Court. 22 NYCRR § 202.16(f)(3).
6. Upon any application for an award of counsel fees or
appraisal/accounting fees made prior to the conclusion of the trial, the Court shall set
forth in specific detail, in writing or on the record, the factors it considered and the
reasons for its decision. 22 NYCRR § 202.16(k)(7).
G. Attorneys' Fees
1 The requirements and authority for the application for counsel fees
in found in DRL § 237(a) and 22 NYCRR § 202.16(k)(3). DRL §237 provides:
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“a) In any action or proceeding brought (1) to annul a marriage or to
declare the nullity of a void marriage, or (2)for a separation, or (3) for a
divorce, or (4) to declare the validity or nullity of a judgment of divorce
rendered against a spouse who was the defendant in any action outside
the State of New York an did not appear therein where such spouse
asserts the nullity of such foreign judgment, or (5) to enjoin the
prosecution in any other jurisdiction of an action for a divorce, the court
may direct either spouse…to pay such sum or sums of money directly to
the attorney of the other spouse to enable that spouse to carry on or
defend the action or proceeding, as, in the court’s discretion, justice
requires, having regard to the circumstances of the case and of the
respective parties.”
Sec. 202.16(k)(3) provides that:
No motion for counsel fees shall be heard unless the moving
papers also include the affidavit of the movant's attorney
stating the moneys, if any, received on account of such
attorney's fee from the movant or any other person on behalf
the movant, and the moneys such attorney has been
promised by, or the agreement made with, the movant or
other persons on behalf of the movant, concerning or in
payment of the fee.
2. Submit an affidavit revealing billing rate, justification for the rate,
professional standing and experience in the field. Describe in brief detail the work
already done and that which you expect to do. Argue the rough rule of equality inherent
in DRL § 237: you should be paid at least as much as the propertied spouse paid
his/her counsel.
H. Procedural Aspects
1. DRL Sec. 236(B)(6)(a) and 236(B)(7)(a) require that a pendente lite
order for maintenance and child support be effective as of the date of application
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therefor. The date of the application is the date of service of the application. Dooley v.
Dooley, 128 A.D.2d 669, 513 N.Y.S.2d 167 (2d Dept. 1987).
2. A temporary award is extinguished when the permanent award is
made. No order fixing arrears can be made after the permanent award. McLaughlin v.
McLaughlin, 143 A.D.2d 941, 533 N.Y.S.2d 581 (2d Dept. 1987).
3. Where the underlying action is dismissed, a hearing has to be held
if the financial award is to be continued. Sass v. Sass, 129 A.D.2d 622, 514 N.Y.S.2d
257 (2d Dept. 1987).
H. Applicable Statutes and Rules
A. The CPLR
Article 22 of the CPLR is entitled "Stay, Motions, Orders and Mandates"
and contains the fundamental rules applicable to all motions, regardless of the subject
matter of the case. The basic rules are:
• CPLR 2214 (a): what a Notice of Motion must state
• CPLR 2214 (b): timetable for serving moving, answering and reply
papers
• CPLR 2214 (e): what the Court must receive from the parties
• CPLR 2214 (d): Order to Show Cause (timing of answering papers and
return date are in Court's discretion, and are thus not subject to same
time constraints as noticed motions)
• CPLR 2215: cross motions; timetable (Caution: no right of reply)
• CPLR 2217(b): affidavit on ex parte motion (i.e., order to show cause)
must state if there has or has not been a prior request for the same
relief and, if there bas, explain why a new application.
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B. The New York Code, Rules and Regulations (NYCRR)
1. Certification of Papers. 22 NYCRR 130-1.1-a is entitled "Signing
of Papers". This section pertains to all papers served in every kind of case, matrimonial
or otherwise, and requires that every pleading, written motion and other papers, served
on another party or filed or submitted to the court must be signed by an attorney. By
signing a paper, the attorney or party is certifying that, to the best of his or her
knowledge, information and belief, formed after a reasonable inquiry, the submission of
the paper or the contentions contained in the paper are not frivolous as defined in 22
NYCRR 130-1.1 (c). 22 NYCRR 130-1.1 defines "frivolous" conduct as being (a)
completely without merit in law; or (b) designed to create delay or to harass; or (c) the
assertion of false factual statements. See also 202.16 (e).
2. Briefs and Affidavits. 22 NYCRR 202.8(c) provides that "affidavits
shall be for a statement of the relevant facts, and briefs shall be a statement of the
relevant law." Thus, attorney affirmations should not contain legal citations and
arguments. (Note: this rule is widely ignored in matrimonial practice.)
3. Matrimonial Rules. 22 NYCRR 202.16 is entitled "Matrimonial
Actions; Calendar Control of Financial Disclosure in Actions and Proceedings Involving
Alimony, Maintenance, Child Support and Equitable Distribution; Motions for Alimony,
Counsel Fees Pendente Lite, and Child Support, Special Rules." The provisions
relevant to motions are:
• 202.16(f)(2): At the preliminary conference, the court may consider
applications for pendente lite relief. Be prepared; either make your
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motion (i.e., serve the papers) prior to the preliminary conference, or
come prepared to discuss, in detail, the merits of the issues. Some
judges will try to "conference" the issue and avoid a motion. See also,
202.16 (k)(1): "Such motion shall be made before or at the preliminary
conference, if practicable."
• 202.16(k)(2): All motions for temporary support and counsel fees must
have attached a statement of net worth. Failure to attach the statement
of net worth is a fatal defect that cannot be cured in reply papers.
• 202.16(k)(3): All motions for counsel, accounting and expert fees must
contain a submission by the professional seeking fees explaining
money received, work to be done and fee agreement. This means you
must attach your retainer agreement if you are seeking counsel fees.
• 202.16(k)(4): For the purposes of the motion (not the balance of the
case) any fact set forth in the moving party's statement of net worth
that is not contraverted in the responding party's statement of net worth
or sworn affidavits is deemed to be true.
• 202.16(k)(5): In the court's discretion, non-compliance with any of the
provisions of Sec. 202.16 may be the basis of the Court's either
making inferences favorable to the adverse party or denying the
motion outright, without prejudice to renewal upon compliance with the
provisions of the section.
C. The Individual Judges’ Rules
Virtually every Judge publishes his or her own rules. You can find them in
each Judge's courtroom, the New York Law Journal, or on the web at
www.courts.state.ny.us.
I. Credits
A pendente lite award is retroactive to the date of application, with the
payor spouse being entitled to a credit against the retroactive sums for amounts
voluntarily paid by him/her for maintenance and support during that period for which
s/he has canceled checks or other similar proof of payment, including payments of real
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estate taxes on marital residence, charge accounts and car insurance paid for the
payee. Mamet v. Mamet, NYLJ, 11/5/87, p.13, col.2 (Sup. Ct., N.Y. Co.); West v. West,
151 A.D.2d 475,542 N.Y.S.2d 265 (2d Dept. 1989).
J. Effect of Denial of Relief
The fact that temporary maintenance was denied during the pendency of
the action does not preclude an award of retroactive maintenance in the final order.
DeBergalis v. DeBergalis, 156 A.D.2d 335, 496 N.Y.S.2d 311 (4th Dept. 1989).
IV. Oral Arguments
Oral argument of your motion is done on the return date. If your
application for relief was brought by Notice of Motion, you will determine the return date.
If your application was brought by Order to Show Cause, the court will schedule the
return date. Occasionally, the court will determine that it will decide the motion on the
papers only, and appearances and oral argument by counsel is not necessary.
Counsel should prepare for the return date by assuming that the court has
not read the papers. This means that you must be prepared to present the facts as well
as your arguments in support of your requests for relief. Usually, however, the judge
will state that he or she has read the papers. The judge will state what the motion is
about, then ask counsel for the movant if he or she wishes to be heard.
The most important rules for oral argument are:
• Be on time!
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• Bring your client.
• Be prepared by thoroughly knowing the facts and the law.
• Be succinct. The court’s calendar is usually full, and judges do not lave the time
or the patience for repetitious arguments. Explain your main points to the judge
as concisely as you can.
• Make the record clear. Ask the judge for a clarification of his or her ruling if you
must.
• Do not be argumentative with the judge. Make your points, and take exception to
an adverse ruling if necessary, but be respectful at all times.
• Listen to the judge and your adversary.
• Know when to stop talking! If the judge is ready to rule, or has ruled in your
favor, do not belabor the point.
• Make arrangements with the court reporter to purchase a copy of the transcript.
This is essential for preparing and filing the judge’s order.