Johnson v. Johnson

138 A.D.2d 958

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 4, 1988
• Docket: Appeal No. 1
• Status: Published

Opinion

Order insofar as appealed from unanimously reversed on the law without costs and application denied. Memorandum: The court’s award of temporary child support must be reversed. Defendant proceeded by order to show cause. Plaintiff’s attorney was served with the order to show cause four days before its return date. When he tried to contact plaintiff, who is a teacher, he discovered that she was out of town attending an educational seminar and was not expected back until after the return date. Plaintiff’s attorney submitted an affidavit apprising the court of plaintiffs absence and requesting an adjournment. The court denied the request for an adjournment although there was no evidence that a short delay would result in economic hardship to the children. Under these circumstances, it was an improvident exercise of the court’s discretion to decide the motion on the merits. Moreover, it is apparent from the record that defendant is possessed of sufficient financial resources to support the parties’ two children during the pendency of this action. An award of child support should await defendant’s compliance with outstanding discovery demands. (Appeal from order of Supreme Court, Cattaraugus County, Horey, J. — support.) Present — Callahan, J. P., Doerr, Denman, Green and Balio, JJ.