Besen v. Besen

94 A.D.2d 637, 462 N.Y.S.2d 191, 1983 N.Y. App. Div. LEXIS 18041

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 10, 1983
• Status: Published

Opinions

Order of the Supreme Court, New York County (Gabel, J.), entered December 14, 1982, which, inter alia, directed the defendant husband to pay plaintiff wife, pendente lite, the amount of $500 per week for maintenance, $500 per week for the support of two minor children; to continue to pay for the maintenance and utilities on the marital co-operative apartment, the private schooling of the children and all medical expenses; and which enjoined the • defendant from assigning, transferring, selling, encumbering or hypothecating any of his assets or removing any of his assets from the jurisdiction of the court, except in the ordinary course of defendant’s business and in connection with his personal affairs, is affirmed, without costs. The dissent asserts, not inaccurately, that the “wife clearly has some substantial assets”. However, this may be misleading. The record reveals that essentially the assets of the wife are not in such form as to make funds available for her support. They consist principally of one half the value of a co-operative apartment and its furnishings. Moreover, the shares of stock which she owns in a corporation in which her father is a major shareholder do not yield income and are essentially unmarketable, being “lettered” or restricted shares. It seems significant further, that even the dissent concedes that there is an “area of uncertainty” as to the precise assets and earnings of the husband. Exhibits submitted to Special Term show that the husband’s net equity in a securities trading account to have been $1,010,000 as of April, 1982. Although the dissent recites that there is an outstanding bank debt of $510,000 applicable to this securities account, the letter from Chemical Bank dated February 2, 1982, states that $510,000 represents an outstanding loan “used for general real estate investments” (emphasis added). Since the same letter notes that a $370,000 loan is outstanding for the acquisition of the land and house in Westhampton, New York, the question remains as to exactly which “real estate investments” were made by the husband, either alone or in partnership with his brother, with the proceeds of the $510,000 loan. Defendant in an affidavit submitted at Special Term denied having any interest in real property with the exception of the cooperative, his one-eighth interest in the building which was inherited from his father, the Westhampton beach house, and a one-eighth interest in undeveloped property now subject to a real estate tax arrears foreclosure sale. In addition, although the dissent attempts to calculate the husband’s present income, based largely upon his income tax returns and his accountant’s “projection,” we note that said returns would not reflect income from municipal bonds which are tax exempt or other tax shelters. Evidence submitted by the wife indicates that the husband, at some point of time which is in dispute, indeed, had a sizeable portfolio of such municipal bonds. We do not express any opinion as to the level of support which should be fixed by the court after trial. It seems quite apparent from the discussion in the dissent, and of necessity our response, that the precise financial status of each of the parties is subject to conjecture and surmise. The award of temporary maintenance and support is discretionary with Special Term (Domestic Relations Law, §§ 236, 240) and should not be casually upset. From our review of the record, we are of the opinion that there was no abuse of discretion by Special Term in these awards and in the other provisions it made pendente lite. “A temporary award is bottomed upon conflicting affidavits, ofttimes based upon differing versions of the finances of the parties and the standard of living enjoyed by them during the life of the marriage. As we have noted' on numerous occasions, the remedy for this sometimes unsatisfactory award is a speedy trial where the facts may be examined into in far greater detail and where a more accurate appraisal of the situation of the parties may be obtained” (Woram v Gilliam,78 AD2d 796). Because of the amorphous nature and complexity of the financial status of each of the parties, we realize that there may not be a prompt resolution of this matter. Therefore, our determination herein is without prejudice to reapplication by either party to Special Term for modification of its order after a more accurate appraisal of the financial situation of the parties has been obtained. Concur — Kupferman, J. P., Sullivan, Asch and Milonas, JJ.