Stone v. Stone

152 A.D.2d 560, 543 N.Y.S.2d 489, 1989 N.Y. App. Div. LEXIS 9721

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 3, 1989
• Status: Published

Opinion

In an action for a divorce and ancillary relief, the defendant husband appeals from so much of an order of the Supreme Court, Westchester County (Ruskin, J.), entered September 2, 1988, as denied his motion, inter alia, to direct the plaintiff to return all sums paid to her for maintenance arid mortgage payments since April 1987, to stay further payments of interim maintenance, and for an award of counsel fees for the defense of the plaintiff wife’s prior cross motion and for the prosecution of the instant motion.

Ordered that the order is affirmed insofar as appealed from, with costs.

As we have previously stated, appeals from orders granting pendente lite relief are disfavored as it is clearly more expedient and in the interests of judicial economy to proceed promptly to trial (see, Berger v Berger, 125 AD2d 285). In this case the affidavits submitted presented extremely conflicting views of the financial situation of the plaintiff wife. A speedy trial would permit a prompt and more detailed examination of the facts for the purposes of making an award, if any, of permanent maintenance (see, Woram v Gilliam, 78 AD2d 796).

We find that, contrary to the husband’s contention, it was not indisputably shown that the wife committed perjury in respect to her financial situation. No affidavit was submitted by an accountant to explain the disbursements attributed to the wife or to dispute her claimed income. In any event, the husband would not be entitled to restitution or recoupment of the payments made pursuant to the modified temporary maintenance award (see, Rodgers v Rodgers, 98 AD2d 386; Rosenberg v Rosenberg, 42 AD2d 590; Matter of Klein v Klein, 58 AD2d 811; Grossman v Ostrow, 33 AD2d 1006). Mangano, J. P., Brown, Kunzeman and Hooper, JJ., concur.