                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: April 14, 2016                      521679
________________________________

MAUREEN D. TEANEY,
                      Appellant,
     v                                        MEMORANDUM AND ORDER

KEVIN S. TEANEY,
                    Respondent.
________________________________


Calendar Date:   February 17, 2016

Before:   McCarthy, J.P., Egan Jr., Rose and Lynch, JJ.

                               __________


      Ackerman, Wachs & DeArmas, PC, Albany (F. Stanton Ackerman
of counsel), for appellant.

      Cordell & Cordell, PC, Albany (J. Rochelle Cavanagh of
counsel), for respondent.

                               __________


Egan Jr., J.

      Appeal from that part of a judgment of the Supreme Court
(McDonough, J.), entered December 31, 2014 in Albany County,
which denied plaintiff's application for counsel fees.

      Plaintiff (hereinafter the wife) and defendant (hereinafter
the husband) were married in 1994 and have two teenage children.
The wife commenced this action for divorce by service of a
summons with notice in June 2013 and, in conjunction therewith,
twice sought a pendente lite award of counsel fees. In March
2014, Supreme Court (Teresi, J.) denied the wife's first
application, finding, among other things, that the wife failed to
demonstrate that she required an interim award of counsel fees in
order to litigate this matter "on an equal footing" with the
husband. Three months later, Supreme Court denied the wife's
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second application for an award of counsel fees, which was
limited to the fees incurred in bringing a motion to compel
certain discovery, due to the wife's failure to supply the court
with, among other things, a current statement of net worth.

      Following Justice Teresi's retirement, the matter was
transferred to Justice O'Connor and, in June 2014, the wife and
the husband appeared before Justice O'Connor and entered into a
stipulation resolving custody of their children. The matter was
transferred again in anticipation of trial and, in July 2014, the
parties appeared before Justice McDonough and entered into a
stipulation resolving the remainder of their marital issues –
with each party reserving the right to submit an application for
counsel fees. During the course of a colloquy with counsel,
Justice McDonough expressed the belief that Justice Teresi's
prior orders denying the wife's applications for interim counsel
fees constituted law of the case and, as such, the wife's
impending submission should be limited to fees incurred after the
date of Justice Teresi's June 2014 order.

      The wife thereafter submitted her application – seeking
approximately $17,000 in counsel fees, including fees incurred
prior to June 2014 – and the husband cross-moved for similar
relief – seeking approximately $1,800 in counsel fees incurred in
connection with opposing the wife's application. Supreme Court
(McDonough, J.), upon giving due consideration to the parties'
respective financial resources and taking into account other
pertinent factors, denied both applications, finding that the
particular circumstances of this matter did not warrant an award
of counsel fees to either the wife or the husband. The wife now
appeals, and the husband – contending that such appeal is
frivolous – seeks counsel fees and sanctions pursuant to 22 NYCRR
130-1.1.

      In an action for divorce, "the court may direct either
spouse . . . to pay counsel fees . . . directly to the attorney
of the other spouse to enable the other party 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" (Domestic Relations Law § 237 [a];
see Vertucci v Vertucci, 103 AD3d 999, 1004 [2013]; O'Connor v
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O'Connor, 91 AD3d 1107, 1109 [2012]). When exercising its
discretionary powers in this regard, "a court should review the
financial circumstances of both parties together with all the
other circumstances of the case, which may include the relative
merit of the parties' positions" (DeCabrera v Cabrera-Rosete, 70
NY2d 879, 881 [1987]; accord Lang v Lang, 72 AD3d 1255, 1256
[2010]), as well as "the complexity of the case and the extent of
legal services rendered" (Armstrong v Armstrong, 72 AD3d 1409,
1416 [2010]). Where, as here, the matrimonial action was
commenced on or after October 12, 2010 (see L 2010, ch 329, § 1),
there is a "rebuttable presumption that counsel fees shall be
awarded to the less monied spouse" (Domestic Relations Law § 237
[a]; accord Vantine v Vantine, 125 AD3d 1259, 1262 [2015]; see
Gifford v Gifford, 132 AD3d 1123, 1126 [2015]).

      Preliminarily, pendente lite orders – by their very nature
– afford only interim or temporary relief. Indeed, "[t]he
purpose of an award of pendente lite relief is to tide over the
more needy party, not to determine the correct ultimate
distribution" or award (Jordan v Jordan, 2 AD3d 687, 688 [2003]
[internal quotation marks and citations omitted]). For that
reason, pendente lite awards necessarily represent a snapshot of
a party's financial circumstances and corresponding need at a
particular point in time, and such circumstances/need may well
change as the litigation progresses. Hence, the mere fact that a
party's request for interim counsel fees was denied at the outset
of the litigation does not preclude a court from making such an
award at the conclusion thereof – after taking into
consideration, among other things, the counsel fees incurred, the
length and complexity of the case and how the parties ultimately
fared after issues of equitable distribution and child support
were finally resolved. In this regard, Domestic Relations Law
§ 237 (a) expressly contemplates that multiple applications for
counsel fees may be made by a party, noting that "[a]pplications
for the award of fees and expenses may be made at any time or
times prior to final judgment." Although each application
necessarily must be assessed upon its own merits, giving due
consideration to all of the relevant factors and circumstances,
the denial of a party's request for interim relief simply does
not limit or preclude a party's subsequent request for counsel
fees at the conclusion of the litigation.
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      That said, upon reviewing the parties' respective
submissions, we cannot say that Supreme Court abused its
considerable discretion in denying the wife's most recent
application for counsel fees. As the wife candidly acknowledged
in her affidavit in support of such request, "there is no great
income disparity" between the parties. Additionally, the custody
and matrimonial issues were resolved by stipulation within
approximately one year of the commencement of this action, and
nothing on the face of the record suggests that this matter
presented particularly complex legal issues. Further, given the
relatively expeditious progression of the litigation, we do not
find that the husband was obstructionist or otherwise
unnecessarily prolonged the resolution of this matter.
Accordingly, we have no quarrel with Supreme Court's denial of
the wife's application on the merits.

       The wife's argument regarding comments made by the court
during the parties' July 2014 appearance, wherein Justice
McDonough characterized Justice Teresi's prior orders denying the
wife's applications for interim counsel fees as law of the case
and indicated that the wife's subsequent application should be
limited to fees incurred after the date of Justice Teresi's
latest order (June 18, 2014), does not merit extensive
discussion. Such commentary, while constituting a slight
misstatement of the law, is not appealable, and nothing on the
face of Supreme Court's written order reflects that the court
actually employed the restrictive analysis of which the wife now
complains. The parties' remaining arguments, including the
husband's request for sanctions and counsel fees under 22 NYCRR
130-1.1, have been examined and found to be lacking in merit.

     McCarthy, J.P., Rose and Lynch, JJ., concur.
                        -5-                  521679

ORDERED that the judgment is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
