Cohn v. Cohn

In an action for a divorce and ancillary relief, the defendant appeals, as limited by his notice of appeal and brief, from so much of an order of the Supreme Court, Nassau County (Brucia, J.), entered February 16, 1994, as granted the branch of the plaintiffs cross motion which was for pendentelite maintenance arrears in the amount of $6,750.

Ordered that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the branch of the plaintiffs cross motion which is for pendente-lite maintenance arrears is denied.

By an order dated October 5, 1992, the Supreme Court granted the branch of the plaintiffs motion which was for pendente-lite maintenance arrears that had accrued prior to her motion. The Supreme Court also ordered a hearing on the defendant’s cross motion for a downward modification of the pendente-lite maintenance (see, Cohn v Cohn, 208 AD2d 885). While the hearing was still pending on the defendant’s cross motion, the court issued the order appealed from, which, inter alia, awarded the plaintiff additional pendente-lite maintenance arrears.

The court erred in awarding the plaintiff arrears that had accumulated after the date of the defendant’s cross motion for a downward modification of pendente-lite maintenance since the correct amount of arrears cannot be determined until after the hearing on the defendant’s cross motion (see, e.g., Singer v Singer, 180 AD2d 725; Schelter v Schelter, 159 AD2d 995; Mc-Evoy v McEvoy, 131 AD2d 547; Penziner v Penziner, 123 AD2d 674). Sullivan, J. P., O’Brien, Altman and Goldstein, JJ., concur.