Husband Seeks Summary Judgment in New York Divorce Case; Appellate Court Explains Why He Cannot Do That

By Beyond My Ken Category:Architectural sculptures (Own work) [GFDL (http://www.gnu.org/copyleft/fdl.html) or CC BY-SA 4.0-3.0-2.5-2.0-1.0 (http://creativecommons.org/licenses/by-sa/4.0-3.0-2.5-2.0-1.0)], via Wikimedia CommonsA New York appellate court recently considered three appeals brought by the husband/plaintiff while his divorce case, Trbovich v. Trbovich, was still pending in the Supreme Court of Erie County. Each appeal arose from a different order, and the appellate court dealt with each one in separate orders (“Trbovich I,” “Trbovich II,” and “Trbovich III”). The court vacated an order awarding temporary maintenance to the wife because of a pre-nuptial agreement, but it affirmed an order denying summary judgment on the divorce itself. The husband had filed a sworn statement establishing the basis for a “no-fault” divorce, but the court held that state law requires the parties to address additional issues before a divorce may be granted.

The husband initiated the divorce proceeding, and filed a sworn statement that his relationship with the wife had “broken down irretrievably for a period of at least six months,” as required by § 170(7) of the New York Domestic Relations Law. In a preliminary order, the Supreme Court ordered the husband to pay temporary maintenance to the wife in the form of weekly payments for general support and to cover housing expenses.

The husband filed motions seeking summary judgment on the divorce and asking the court to vacate the temporary maintenance award. The court denied these motions, but granted the wife’s motion for over $56,000 in attorney’s fees. It also directed the husband to comply with various discovery requests from the wife.

In Trbovich I, the appellate court considered the orders denying summary judgment and awarding temporary maintenance. It affirmed the denial of the summary judgment motion. New York courts have held that a spouse does not have a right to litigate the other spouse’s sworn statement filed under § 170(7). The court noted, however, that a court cannot grant a divorce until other issues are resolved by the agreement of the parties or by the court, including equitable distribution of marital property, child support, custody and visitation, spousal support, and attorney’s fees. Since many of these issues remained unresolved, the appellate court held, the trial court was right to deny summary judgment.

On the issue of temporary maintenance, the court agreed with the husband’s argument that a prenuptial agreement between the parties precluded such awards. The wife had filed counterclaims in the Supreme Court seeking to invalidate the prenuptial agreement, but the trial court had not ruled on any of her objections yet. The appellate court therefore concluded that the trial court erred by awarding temporary maintenance.

The appellate also reversed the order awarding attorney’s fees to the wife in Trbovich II, on the same grounds as its ruling in Trbovich I vacating the temporary maintenance order. Trbovich III dealt with the wife’s discovery requests. Since the trial court did not “order” the husband to respond to the requests, but rather “directed” him to do so at a compliance conference requested by the wife, the appellate court held that the issue was not subject to appeal.

A New York divorce requires a division of all assets owned by the couple. If they have amassed a significant amount of wealth, or if one or both spouses hold certain possessions dear, this process can be especially difficult. Anyone involved in a New York divorce proceeding should seek the assistance of an experienced and skilled family law attorney to protect their assets and defend their rights. Ingrid Gherman has practiced family law in the greater New York City area for the past three decades. To schedule a confidential consultation, please contact us today online or at (212) 941-0767.

More Blog Posts:

Appellate Court Affirms Denial of Motion to Voluntarily Discontinue New York Divorce Case on First Day of Trial, New York Divorce Attorney Blog, March 13, 2015

Appellate Court Adjusts Trial Court’s Distribution of Business Interests in New York Divorce Case, New York Divorce Attorney Blog, February 27, 2015

New York Judge Criticizes Spouse’s “Emotional Agenda” in Proceeding for Division of Marital Property, New York Divorce Attorney Blog, February 17, 2015

Photo credit: By Beyond My Ken, Category:Architectural sculptures (Own work) [GFDL or CC BY-SA 4.0-3.0-2.5-2.0-1.0], via Wikimedia Commons.