DECISION & ORDER

In an action for a divorce and ancillary relief, the plaintiff appeals from an order of the Supreme Court, Queens County (Fitzmaurice, J.), entered June 22, 2006, which denied her motion, inter alia, for pendente lite child support, maintenance, and an interim attorney's fee.

ORDERED that the order is modified, on the law and in the exercise of discretion, by (1) deleting the provision thereof denying that branch of the plaintiff's motion which was for pendente lite maintenance and child support, and substituting therefor a provision granting that branch of the motion to the extent of awarding her the sum of $1,750 per month in combined maintenance and child support pending trial of the action, over and above the $7,500 disbursement ordered by the Supreme Court, Rockland County, in the guardianship proceeding entitled Matter of Wald, under Index No. 5952/00, retroactive to February 9, 2006, and (2) deleting the provision thereof denying that branch of the plaintiff's motion which was for an interim attorney's fee in the amount of $20,000 and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with costs to the plaintiff.

The parties were married in 1989 and there are three minor children of the marriage. Prior to an accident in August 2000, as a result of which the defendant husband sustained severe brain injuries, he was a dentist earning over $400,000 per year. Following the accident, the husband was unable to continue in his dental practice. In December 2000 the Supreme Court, Rockland [*2]County (Weiner, J.), adjudicated the husband an incapacitated person and appointed the plaintiff wife as his guardian. In May 2003 the wife was removed as guardian and replaced by the current co-guardians.

In November 2003 the guardianship court ordered the wife to turn over to the co-guardians all assets in which the husband had an interest, including all funds jointly held by the wife. Thereafter, during a hearing on March 8, 2004, the guardianship court directed the guardians to make disbursements in the sum of $7,500 monthly from the guardianship fund to provide for the expenses of the wife and children, without prejudice to the submission of support issues to the matrimonial court.

In August 2004, after receiving permission from the guardianship court, the wife commenced the instant action for divorce and ancillary relief in the Supreme Court, Queens County. The wife then moved in the matrimonial court, inter alia, for pendente lite relief. Citing the guardianship court's monthly $7,500 disbursement to the wife, the Supreme Court denied that branch of the wife's motion. Under the circumstances of this case, that denial was an improvident exercise of discretion. The wife is entitled to a pendente lite award of $1,750 per month in combined maintenance and child support, over and above the amount of the guardianship budget, retroactive to February 9, 2006, the date of the wife's order to show cause seeking such relief (see Bourne v Bourne, 237 AD2d 317, 318; Bernstein v Bernstein, 143 AD2d 168, 169-170; see also Domestic Relations Law § 236 [B][6][a], [7][a]).

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 preseparation standard of living" (Byer v Byer, 199 AD2d 298; see Levakis v Levakis, 7 AD3d 678). A speedy trial is ordinarily the proper remedy to rectify a perceived inequity in a pendente lite award, though "the rule is not ironclad when the award is deficient" (Byer v Byer, 199 AD2d 298, quoting Bernstein v Bernstein, 143 AD2d 168, 169). In such a case, this court may substitute a discretionary determination for that of the trial court (see Bourne v Bourne, 237 AD2d 317; Bernstein v Bernstein, 143 AD2d at 169).

Here, the Supreme Court denied that branch of the wife's motion which sought pendente lite maintenance and child support, finding that the $7,500 monthly disbursement from the guardianship funds was sufficient to meet the reasonable needs of the wife and children. Considering the substantial marital assets and the wife's monthly expenses, we disagree and find the amount deficient to the extent indicated. Based on the husband's claimed expenses in his most recent statement of net worth, the husband is possessed of sufficient income to provide the additional support, despite his substantial medical expenses. This award covers all expenses of the wife and children pending trial of this matter.

The Supreme Court improvidently exercised its discretion in denying that branch of the wife's motion which was for an award of an interim attorney's fee. Domestic Relations Law § 237(a) provides that a court may award interim counsel fees to a spouse in a divorce action should the award be required "to enable the petitioning party to properly proceed." The provision "is designed to redress the economic disparity between the monied spouse and the non-monied spouse [so] that the matrimonial scales of justice are not unbalanced by the weight of the wealthier litigant's wallet" (O'Shea v O'Shea, 93 NY2d 187, 190). The issue of counsel fees "although entrusted to [*3]the sound discretion of the trial court . . . is nonetheless controlled by the equities of the case and the financial circumstances of the parties'" (Lutz v Goldstone, 38 AD3d 720, 721, quoting Popelaski v Popelaski, 22 AD3d 735, 738). Here, the marital assets of the parties are held in the guardianship account, leaving the wife without sufficient funds to properly proceed in the divorce action. Further, the guardianship court authorized payment of a retainer to the husband's matrimonial counsel from guardianship funds. Accordingly, the equities of the case warrant an award of an interim attorney's fee to the wife. She incurred reasonable legal fees in excess of the amount sought in her motion. Accordingly, that branch of her motion which was for an award of an interim attorney's fee in the sum of $20,000 is granted.

The wife's remaining contentions are without merit.
CRANE, J.P., SPOLZINO, KRAUSMAN and McCARTHY, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Kaplan v. Kaplan, 21 A.D.3d 993, 801 N.Y.S.2d 391 (Second Dept. 2005)(2005 WL 2292997)(2005 N.Y. Slip Op. 06777)(Sep 19, 2005):

Supreme Court, Appellate Division, Second Department, New York.

David KAPLAN, appellant,

v.

Nicole Turano KAPLAN, respondent.

Sept. 19, 2005.

HOWARD MILLER, J.P., BARRY A. COZIER, DAVID S. RITTER, and STEVEN W. FISHER, JJ.

In an action for a divorce and ancillary relief, the father appeals from so much of a judgment of the Supreme Court, Nassau County (LaMarca, J.), entered September 1, 2004, as, after a nonjury trial, awarded the mother custody of the parties' child and permitted her to relocate, and awarded child support in the sum of $3,925 per month, maintenance in the sum of $7,500 per month for 5 years, and an attorney's fee in the sum of $100,000.

ORDERED that the judgment is modified, on the law, the facts, and as a matter of discretion, by (1) deleting the provision thereof awarding child support to the mother in the sum of $3,925 per month and substituting therefor a provision awarding her child support in the sum of $2,836 per month, (2) adding thereto a provision directing that, upon the termination of the father's maintenance obligation, the father's child support obligation shall be upwardly modified to the sum of $4,112 per month, and (3) adding thereto a provision directing that (a) the parties shall jointly consult with each other with respect to the child's education and health, including, but not limited to, decisions pertaining to his special needs arising from his hearing disability, and (b) the parents in their consultation shall always use their best efforts and good faith to arrive at a joint decision in the best interests of the child, but that the mother shall have final decision-making authority; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements.

In a child custody determination, a court must decide "what is for the best interest of the child, and what will best promote its welfare and happiness" (Domestic Relations Law ? 70[a]; Eschbach v. Eschbach, 56 N.Y.2d 167, 171; Miller v. Pipia, 297 A.D.2d 362, 364). Factors to be considered include "the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent" (Miller v. Pipia, supra at 364). The "existence or absence of any one factor cannot be determinative on appellate review since the court is to consider the totality of the circumstances" (Eschbach v. Eschbach, supra at 174; see Miller v. Pipia, supra at 364; Young v. Young, 212 A.D.2d 114, 118). The trial court's determination must be "accorded great deference on appeal, since it had the opportunity to assess the witnesses' demeanor and credibility" (Miller v. Pipia, supra at 364, see Eschbach v. Eschbach, supra at 173). Only where the determination "lacks a sound and substantial basis" should it be disturbed (Miller v. Pipia, supra at 364).

Given that the mother was supportive of visitation, that both parties are fit and loving parents, each capable of caring for the child, that the mother was available to care for the child and address his special needs, and that the mother was the primary caretaker since the child's birth, the trial court properly awarded custody of the parties' child to the mother (see Cohen v. Merems, 2 AD3d 663; Miller v. Pipia, supra; Forzano v. Scuderi, 224 A.D.2d 385). However, given the foregoing, we deem it appropriate to modify the judgment to add a provision directing that the parties, in good faith, jointly consult with each other regarding decisions pertaining to the child's education and health, with the mother having final decision-making authority.

Contrary to the father's contention, the trial court properly weighed the relevant factors set forth in Matter of Tropea v. Tropea (87 N.Y.2d 727), and determined that the mother's relocation to Chappaqua, in Westchester County, will serve the best interests of the child.

Further, in calculating the amount of the child support award pursuant to the Child Support Standards Act (hereinafter CSSA) (see Domestic Relations Law ? 240[1-b] ), the trial court opted to apply the child support percentage (in this case 17%) to the combined parental income over $80,000. The father contends that the Supreme Court erred in failing to articulate a reason for applying the statutory percentage to the combined parental income over $80,000. We disagree. The court's 50-page decision after trial meticulously described the parties' respective circumstances, and there is "sufficient record indication" that application of the statutory percentage was justified (see Matter of Cassano v. Cassano, 85 N.Y.2d 649, 655). The mother was not working at the pertinent time, and was attending to child care, including the child's special needs. The father was working, and was earning in excess of $400,000 per year. We conclude that the Supreme Court providently exercised its discretion in capping his annual income at $300,000. Thus, as the Supreme Court correctly concluded, the combined parental income was $300,000, and the father's percentage obligation for child support was 100%. However, in making its child support determination, the Supreme Court failed to deduct from the father's income the amount of maintenance ($90,000 per year) that he was ordered to pay to the mother (see Domestic Relations Law ? 240[1-b][b][5] [vii] ). The court further erred in its FICA calculation.

Rather than remit the matter to the Supreme Court, Nassau County, for a recalculation of child support, in the interest of judicial economy, we do so. Thus, after deducting from the annual income of $300,000, the sums of $90,000 for maintenance and $9,768 for FICA, and applying the 17% statutory rate, we conclude that the father's child support obligation should be the sum of $2,836 per month. Upon termination of the father's maintenance obligation, his child support obligation shall be upwardly modified to the sum of $4,112 per month (see Domestic Relations Law ? 240[1-b][b][vii][C] ).

The mother was awarded maintenance in the sum of $7,500 per month for 5 years. Contrary to the father's contention, the maintenance award was a proper exercise of the trial court's discretion, taking into consideration the relevant factors, including the parties' pre-separation standard of living, the separate property retained by each party and their respective net equitable distributive awards of marital property, the mother's absence from the work force as a certified social worker for most of the period following the birth of the parties' special needs child on January 19, 2001, the mother's continued role as the primary caretaker of a special needs child, the father's significantly higher earning capacity as a successful partner in a radiology practice, and the short duration of the parties' marriage (see Domestic Relations Law ? 236[B][6][a]; Comstock v. Comstock, 1 AD3d 307; Alvares-Correa v. Alvares-Correa, 285 A.D.2d 123; Finkelson v. Finkelson, 239 A.D.2d 174; Milewski v. Milewski, 197 A.D.2d 562).

The attorney's fee award to the mother was a proper exercise of the trial court's discretion (see Domestic Relations Law ? 237[a]; Charpie v. Charpie, 271 A.D.2d 169; Vicinanzo v. Vicinanzo, 193 A.D.2d 962; Sclafani v. Sclafani, 178