Jose R. D. v. Elisabeth R. D.

197 A.D.2d 457, 603 N.Y.S.2d 37

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 21, 1993
• Status: Published

Opinion

—Order, Supreme Court, New York County (Lewis R. Friedman, J.), entered on or about June 4, 1993 which, inter alia, upon granting defendant’s motion for renewal and reargument, awarded defendant weekly maintenance of $1,250, and adhered to the award of $500 per week for child support, unanimously affirmed, without costs. Appeal from the order of said court and Justice entered April 29, 1993, unanimously dismissed as superseded in relevant part by the appeal from the order entered on or about June 4, 1993, without costs.

We find no abuse of discretion in the award of temporary maintenance and child support (Domestic Relations Law §§ 236, 240). There was a sufficient basis for the court to reject the income reported by plaintiff in his 1992 tax returns and financial statement as accurate measures of plaintiffs true income and earning capacity (Kay v Kay, 37 NY2d 632, 636; Powers v Powers, 171 AD2d 737). Plaintiffs net worth statement indicates that he is capable of earning over $277,000 per year, and the evidence submitted by both parties tends to show that plaintiff earns or has control over substantially more than he reports, and that he has the ability, through various business enterprises or associates, to manipulate the amount of business expenses used to reduce the amount of his reported income. Where, as in this case, the temporary award is based upon conflicting affidavits asserting differing versions of the finances of the parties and the standard of living enjoyed by them during the marriage, it is well settled that the remedy is a speedy trial where the facts may be examined in far greater detail and a more accurate appraisal of the parties’ situation obtained (Besen v Besen, 94 AD2d 637, 638). Concur—Sullivan, J. P., Carro, Ellerin, Kassal and Rubin, JJ.