Fascaldi v. Fascaldi

186 A.D.2d 532, 588 N.Y.S.2d 354, 1992 N.Y. App. Div. LEXIS 11142

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 5, 1992
• Status: Published

Opinions

— In an action for a divorce and ancillary relief, the defendant husband appeals from so much of an order of the Supreme Court, Nassau County (DiNoto, J.), entered April 25, 1990, as granted that branch of the motion of the plaintiff wife which was for $600 per week in pendente lite maintenance.

Ordered that the order is modified, as a matter of discretion, by reducing the award of pendente lite maintenance to $100 per week; and as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

Although a speedy trial is the proper remedy for inequities in an order directing pendente lite relief in the form of temporary spousal maintenance (see, Bernstein v Bernstein, 143 AD2d 168; Wesler v Wesler, 133 AD2d 627, 628), when the support payments are "so prohibitive as to strip the payor spouse of income and assets necessary to meet his or her own expenses, relief may be granted in the interest of justice” (Chachkes v Chachkes, 107 AD2d 786, 787; see also, Wesler v Wesler, supra; cf., Colabella v Colabella, 86 AD2d 643).

In making an award of temporary maintenance, the court must consider the financial needs of the party requesting the support and the parties’ respective financial conditions (see, Domestic Relations Law § 236 [B] [6] [a]; Chachkes v Chachkes, supra; Van Ess v Van Ess, 100 AD2d 848). The award should be an accommodation between the reasonable needs of the moving party and the financial ability of the other spouse (Salerno v Salerno, 142 AD2d 670, 672).

In the present case, the award to the wife of temporary maintenance in the amount of $600 per week was excessive in light of the other support obligations imposed on the husband by a prior order of the same court dated January 11, 1990. Under that earlier order, the husband was directed to pay child support; the monthly carrying charges on the marital residence; the cost of the maintenance and operation of the wife’s automobile; health, dental, and hospital insurance; any unreimbursed medical or hospital bills; and the tuition of the parties’ infant son, for a total of over $750 per week.

With the additional maintenance award the husband is obligated to pay $1,350 per week, exceeding his weekly income of $1,224 and leaving him with insufficient funds to meet his own needs. Under these circumstances, and since the wife is receiving $276 per week in salary and $66 per week in interest income, an award of $100 per week would be sufficient. Bracken, J. P., Lawrence and Copertino, JJ., concur.