Bagner v. Bagner

• Decision Date: 08 August 1994
• Citation: 615 N.Y.S.2d 737,207 A.D.2d 367
• Parties: Barbara BAGNER, Respondent, v. Jerome BAGNER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 737

615 N.Y.S.2d 737

207 A.D.2d 367

Barbara BAGNER, Respondent, v. Jerome BAGNER, Appellant.

Supreme Court, Appellate Division Second Department.

Aug. 8, 1994.

Taylor, Atkins & Ostrow, Garden City (Michael J. Ostrow, of counsel), for appellant.

Kroll & Blachor, Garden City (Dale B. Weiss, of counsel), for respondent.

Before THOMPSON, J.P., and BALLETTA, O'BRIEN and FLORIO, JJ.

MEMORANDUM BY THE COURT.

In an action for divorce and ancillary relief, the defendant husband appeals, as limited by his brief, from stated portions of an order of the Supreme Court, Nassau County (Brucia, J.) dated June 30, 1992, which, inter alia, granted the plaintiff wife's motion for pendente lite relief to the extent of awarding her temporary maintenance in the sum of $350 per week, temporary child support of $450 per week, carrying charges and expenses on the marital residence including unlimited telephone charges, all unreimbursed or uninsured psychological expenses, including the cost of the plaintiff's past and future counselling, counsel fees of $7,500, and expert fees of $5,000, and issued an order of protection.

ORDERED that the order is modified, as a matter of discretion, by, (1) reducing maintenance to $225 per week, (2) reducing child support to $125 per week for each unemancipated child, (3) adding provisions limiting the defendant's responsibility for the payment of telephone charges to $125 per month, and his responsibility for the payment of the plaintiff's future uninsured psychiatric sessions to one session per week, and (4) deleting the provision thereof which awarded the plaintiff an order of protection, and substituting therefor a provision denying that branch of her motion which was for an order of protection; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

It should be observed that the general rule continues to be that the proper remedy for any perceived inequity in a pendente lite award is a speedy trial (see, Gianni v. Gianni, 172 A.D.2d 487, 568 N.Y.S.2d 113; Barasch v. Barasch, 166 A.D.2d 399, 560 N.Y.S.2d 658), and that a pendente lite award will rarely be modified 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, Raniolo v. Raniolo, 185 A.D.2d 974, 587 N.Y.S.2d 679; Suydam v. Suydam, 167 A.D.2d 752, 563 N.Y.S.2d 315). A pendente lite award should be "an accommodation between the reasonable needs of the moving spouse, and the financial ability of the other spouse" with due regard for the pre-separation standard of living (see, Kessler v. Kessler,...