Hite v. Hite

89 A.D.2d 577, 452 N.Y.S.2d 235, 1982 N.Y. App. Div. LEXIS 17643

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 12, 1982
• Status: Published

Opinion

In a matrimonial action, the defendant husband appeals from an order of the Supreme Court, Dutchess County (Hawkins, J.), dated July 27, 1981, which, upon the plaintiff wife’s motion for pendente lite relief, inter alia, awarded her exclusive possession of the marital residence and temporary maintenance and child support in the total sum of $200 per week. Order reversed, without costs or disbursements, and motion denied. Absent any showing that such directive was necessary to protect the safety of persons and property, it was an improvident exercise of discretion for Special Term to award the wife exclusive occupancy of the marital residence prior to trial and without a hearing (see Siegal v Siegal, 74 AD2d 867; Scampoli v Scampoli, 37 AD2d 614; Rowley v Rowley, 6 AD2d-1049). There was no evidence that the wife had ever been issued an order of protection or that the police had ever been called to intervene. Nor did the wife submit any affidavits by third parties to corroborate her allegations of misconduct on the part of the defendant (see Minnus v Minnus, 63 AD2d 966; Binet v Binet, 53 AD2d 836). In view of our determination herein, and in the absence of any proof that the defendant has failed to adequately provide for the needs of his family, there is no need for an award of temporary maintenance and child support (see De Gasper v De Gasper, 31 AD2d 886; Baker vBaker, 16 AD2d 409; Scheideler v Scheideler, 10 AD2d 991). However, the matter should be expeditiously tried. Bracken, J. P., Brown, Niehoff and Rubin, JJ., concur.