Wallach v. Wallach

Appellate Division of the Supreme Court of New York

Wallach v. Wallach

236 A.D.2d 604, 654 N.Y.S.2d 692, 1997 N.Y. App. Div. LEXIS 1541

Appellate Division of the Supreme Court of the State of New York·Decided February 24, 1997·Published·Cited by 9 cases

Opinion

—In an action for a divorce and ancillary relief, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County [605] (Dunn, J.), dated December 18, 1995, as (1) awarded her only $2,500 per month for temporary child support, $2,500 for temporary maintenance, $10,000 for interim accountant fees, and $10,000 for interim counsel fees, and (2) denied her exclusive possession of the marital residence.

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

Modifications of pendente lite awards should rarely be made by an appellate court and then only under exigent circumstances such as where a party is unable to meet his or her financial obligations or justice otherwise requires (see, Beige v Beige, 220 AD2d 636; Bagner v Bagner, 207 AD2d 367). The general rule is that the proper remedy for any perceived inequity in a pendente lite award is a speedy trial (see, Campanella v Campanella, 232 AD2d 598; Gianni v Gianni, 172 AD2d 487). As this Court has repeatedly noted, pendente lite awards should be an accommodation between the reasonable needs of the moving spouse and the financial ability of the other spouse (see, Polito v Polito, 168 AD2d 440; Shapiro v Shapiro, 163 AD2d 294), and they are to be determined with due regard for the preseparation standard of living (see, Salerno v Salerno, 142 AD2d 670). In light of the foregoing, we conclude that the pendente lite order of the Supreme Court awarding child support and temporary maintenance is proper under the circumstances of this case and should not be disturbed.

In addition, the Supreme Court properly declined to grant the defendant exclusive possession of the marital residence at this time, as she failed to establish that it is necessary to protect the safety of persons or property (cf, Joseph v Joseph, 230 AD2d 716; Ljutic v Ljutic, 216 AD2d 274).

The defendant’s remaining contentions are without merit. Rosenblatt, J. P., Pizzuto, Altman and Luciano, JJ., concur.

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—In an action for a divorce and ancillary relief, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County [605] (Dunn, J.), dated December 18, 1995, as (1) awarded her only $2,500 per month for temporary child support, $2,500 for temporary maintenance, $10,000 for interim accountant fees, and $10,000 for interim counsel fees, and (2) denied her exclusive possession of the marital residence.

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

Modifications of pendente lite awards should rarely be made by an appellate court and then only under exigent circumstances such as where a party is unable to meet his or her financial obligations or justice otherwise requires (see, Beige v Beige, 220 AD2d 636; Bagner v Bagner, 207 AD2d 367). The general rule is that the proper remedy for any perceived inequity in a pendente lite award is a speedy trial (see, Campanella v Campanella, 232 AD2d 598; Gianni v Gianni, 172 AD2d 487). As this Court has repeatedly noted, pendente lite awards should be an accommodation between the reasonable needs of the moving spouse and the financial ability of the other spouse (see, Polito v Polito, 168 AD2d 440; Shapiro v Shapiro, 163 AD2d 294), and they are to be determined with due regard for the preseparation standard of living (see, Salerno v Salerno, 142 AD2d 670). In light of the foregoing, we conclude that the pendente lite order of the Supreme Court awarding child support and temporary maintenance is proper under the circumstances of this case and should not be disturbed.

In addition, the Supreme Court properly declined to grant the defendant exclusive possession of the marital residence at this time, as she failed to establish that it is necessary to protect the safety of persons or property (cf, Joseph v Joseph, 230 AD2d 716; Ljutic v Ljutic, 216 AD2d 274).

The defendant’s remaining contentions are without merit. Rosenblatt, J. P., Pizzuto, Altman and Luciano, JJ., concur.

Wallach v. Wallach, 236 A.D.2d 604, 654 N.Y.S.2d 692, 1997 N.Y. App. Div. LEXIS 1541 (N.Y. Ct. App. 1997).

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Opinion

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