Onorato v. Onorato

Appellate Division of the Supreme Court of New York

Onorato v. Onorato

131 A.D.2d 650, 516 N.Y.S.2d 732, 1987 N.Y. App. Div. LEXIS 48112

Appellate Division of the Supreme Court of the State of New York·Decided June 15, 1987·Published·Cited by 7 cases

Opinion

In an action for a divorce and ancillary relief, the defendant husband appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Balletta, J.), dated March 20, 1986, as awarded the plaintiff, pendente lite, child support and maintenance, directed him to make the monthly mortgage payments on the marital residence, and ordered him to pay certain carrying charges as to that residence.

Ordered that the order is modified by deleting the provision thereof which directed the defendant to pay gardening expenses not to exceed the sum of $200 per month; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

Although a speedy trial is ordinarily the proper remedy for inequities in an order of support pendente lite, relief may be granted on appeal in the interest of justice (see, Messina v Messina, 101 AD2d 856). The primary concern of the court in determining an application for temporary maintenance is the respective financial conditions of the parties and the movant’s need for such support pending trial (see, Stern v Stern, 106 AD2d 631, 632).

Under the circumstances of this case, we find that that portion of the court’s order which directed the defendant to pay gardening expenses not to exceed the sum of $200 per month adversely affects the defendant’s ability to meet his own expenses and should therefore be deleted in the interest of justice (see, Chachkes v Chachkes, 107 AD2d 786, 787). Thompson, J. P., Brown, Niehoff and Spatt, JJ., concur.

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In an action for a divorce and ancillary relief, the defendant husband appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Balletta, J.), dated March 20, 1986, as awarded the plaintiff, pendente lite, child support and maintenance, directed him to make the monthly mortgage payments on the marital residence, and ordered him to pay certain carrying charges as to that residence.

Ordered that the order is modified by deleting the provision thereof which directed the defendant to pay gardening expenses not to exceed the sum of $200 per month; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

Although a speedy trial is ordinarily the proper remedy for inequities in an order of support pendente lite, relief may be granted on appeal in the interest of justice (see, Messina v Messina, 101 AD2d 856). The primary concern of the court in determining an application for temporary maintenance is the respective financial conditions of the parties and the movant’s need for such support pending trial (see, Stern v Stern, 106 AD2d 631, 632).

Under the circumstances of this case, we find that that portion of the court’s order which directed the defendant to pay gardening expenses not to exceed the sum of $200 per month adversely affects the defendant’s ability to meet his own expenses and should therefore be deleted in the interest of justice (see, Chachkes v Chachkes, 107 AD2d 786, 787). Thompson, J. P., Brown, Niehoff and Spatt, JJ., concur.

Onorato v. Onorato, 131 A.D.2d 650, 516 N.Y.S.2d 732, 1987 N.Y. App. Div. LEXIS 48112 (N.Y. Ct. App. 1987).

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Opinion

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