Byer v. Byer

199 A.D.2d 298, 604 N.Y.S.2d 254, 1993 N.Y. App. Div. LEXIS 11821

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 13, 1993
• Status: Published

Opinion

In an action for a divorce and ancillary relief, the defendant wife appeals, on the ground of inadequacy, from so much of an order of the Supreme Court, Suffolk County (Goodman, J.), entered August 12, 1991, as directed the plaintiff husband to pay her $250 per week in pendente lite maintenance and $100 per week in pendente lite child support.

Ordered that the order is modified, on the facts and as a matter of discretion, by increasing the pendente lite maintenance from $250 to $400 per week; as so modified, the order is affirmed insofar as appealed from, with costs to the defendant.

As we have repeatedly noted, pendente lite awards should be an accommodation between the reasonable needs of the moving spouse and the financial ability of the other spouse (see, Polito v Polito, 168 AD2d 440), and are to be determined with due regard for the preseparation standard of living (see, Salerno v Salerno, 142 AD2d 670, 672). Moreover, although generally the best remedy for any claimed inequity in a temporary award is a speedy trial (see, Cohen v Cohen, 129 AD2d 550), "the rule is not ironclad when the award is deficient” (Bernstein v Bernstein, 143 AD2d 168,169).

Based on an assessment of the foregoing considerations, we conclude that the amount awarded by the Supreme Court was deficient to the extent indicated. Bracken, J. P., Balletta, Fiber, O’Brien and Pizzuto, JJ., concur.