Summary
In Lucci v. Lucci (227 AD2d 387), a husband promised to transfer real property from his name to his and his wife's names when they married.
Summary of this case from Assing v. GeorgeOpinion
May 6, 1996
Appeal from the Supreme Court, Westchester County (Gurahian, J.).
Ordered that the judgment is modified, on the law and the facts, by (1) deleting the second decretal paragraph thereof and substituting therefor a decretal paragraph awarding the plaintiff pendente lite maintenance arrears from July 9, 1986, to the date of the defendant's application for relief from the temporary order, and (2) deleting the 3rd, 6th, 14th, and 15th decretal paragraphs; as so modified, the judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings in accordance herewith and for entry of an appropriate amended judgment; and it is further,
Ordered that the order dated December 17, 1991, is affirmed insofar as appealed from, without costs or disbursements.
We find that the Supreme Court erred in canceling the arrears which accrued under the temporary maintenance order dated September 9, 1986 (awarding temporary maintenance as of July 9, 1986), prior to the defendant's application for relief from the order. Domestic Relations Law § 244 provides that a court shall not issue an order reducing or canceling arrears which have accrued prior to the making of an application for relief from a judgment or order unless the defaulting party shows good cause for failure to make an application prior to the accrual of such arrears and the facts and circumstances constituting good cause are set forth in a written memorandum decision ( see also, Harris v. Harris, 259 N.Y. 334; Conklin v. Conklin, 90 A.D.2d 817). Retroactive payments of permanent maintenance should be made only if the award is in excess of any temporary maintenance award, rather than as credits for overpayment of temporary maintenance ( see, Maier v. Maier, 201 A.D.2d 919; Rodgers v. Rodgers, 98 A.D.2d 386; Martin v. Martin, 82 A.D.2d 431; Surut v. Surut, 191 App. Div. 570). Thus, the defendant is required to pay to the plaintiff the arrears accrued pursuant to the temporary maintenance order prior to his application for relief from the order, and thereafter, at the rate of $300 per week, for a total period of four years. Accordingly, the matter is remitted to the Supreme Court, Westchester County, to determine the amount of maintenance due to the wife and for entry of an appropriate amended judgment.
Furthermore, the court, in making the award of counsel fees, did not distinguish between those services rendered in connection with the matrimonial cause of action and those rendered in connection with the nonmatrimonial causes of action such as the causes of action to impose a constructive trust and to set aside the transfer of certain of the husband's assets, for which counsel fees are not recoverable ( see, Sandel v. Sandel, 96 A.D.2d 584, 584-585). We therefore remit the matter to the Supreme Court to establish an appropriate award for counsel fees upon such further proceedings as the court may deem necessary.
The wife's cause of action to impress a constructive trust upon the property located on Sagamore Road, Long Lake, New York, is barred by the six-year Statute of Limitations found in CPLR 213 (1), which starts to run upon the occurrence of the wrongful act giving rise to a duty of restitution ( see, Loengard v. Santa Fe Indus., 70 N.Y.2d 262, 267; Congregation Yetev Lev D'Satmar v. 26 Adar N.B. Corp., 192 A.D.2d 501, 503; Sitkowski v. Petzing, 175 A.D.2d 801). The husband promised to transfer the Sagamore Road property to both of their names when they married. Here, the wrongful act occurred on the day the parties were married, over 10 years before the commencement of this action, because it was then that the husband repudiated his promise to transfer the property ( see, Sitkowski v. Petzing, supra, at 802; Augustine v Szwed, 77 A.D.2d 298, 300-301; Motyl v. Motyl, 35 A.D.2d 1051; Rickerman v. Rickerman, 34 A.D.2d 1069; see also, Scheuer v Scheuer, 308 N.Y. 447).
We have reviewed the wife's remaining contentions and find them to be without merit. Bracken, J.P., Miller, Sullivan and Hart, JJ., concur.