In its February 18, 2015 decision in Dunleavy v. Dunleavy, the Second Department modified the order of Suffolk County Supreme Court Justice Carol Mackenzie by increasing the wife’s temporary maintenance award from $75 to $784.62 per week.
The Second Department noted that Domestic Relations Law § 236(B)(5-a) sets forth formulas for the courts to apply to the parties’ reported income in order to determine the presumptively correct amount of temporary maintenance. It further provides that the court shall order the presumptive award of temporary maintenance in accordance with the formulas, unless it finds that the presumptive award is unjust or inappropriate. If so, the court must set forth, in its written order, the enumerated factors it considered and the reasons it adjusted the presumptive award of temporary maintenance.
Here, Justice Mackenzie applied the statutory formulas set forth in Domestic Relations Law § 236(B)(5-a) and arrived at a presumptive award of $784.62 per week, but found that the presumptive award was unjust and inappropriate. The court awarded the wife only $75 per week in temporary maintenance, a 96% reduction of the presumptively correct award.
The appellate court held that the record did not support any reduction of the presumptively correct award, or otherwise lead to the conclusion that the presumptive award was unjust or inappropriate under the circumstances of this case.
While an appellate court should rarely modify a temporary maintenance award, here, we conclude that justice requires an award equal to the statutorily presumptive award.
The Second Department also held that Justice Mackenzie had improvidently exercised her discretion in awarding the plaintiff an attorney’s fee in the sum of only $2,500. Considering the parties’ relative circumstances, including the disparity in the parties’ respective incomes, and considering all of the relevant factors, the appellate court increased the attorney’s fee to the sum of $7,500.
Of interest here may also be the fact that Justice Mackenzie’s order was dated June 21, 2013 (the motion having obviously been made months before that). It thus took some 20 months for the wife’s temporary support to be increased.
Erik C. Howard, of Foster, Vandenburgh, & Riyaz, LLP, of Westhampton, represented the wife. Alan M. Wolinsky, of Wolinsky, Parnell & Montgomery, LLP, of Lake Ronkonkoma, represented the husband.