Charnock v. Charnock

• Decision Date: 21 October 1993
• Citation: 197 A.D.2d 759,602 N.Y.S.2d 729
• Parties: Nancy H. CHARNOCK, Respondent, v. David P. CHARNOCK, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 729

602 N.Y.S.2d 729

197 A.D.2d 759

Nancy H. CHARNOCK, Respondent, v. David P. CHARNOCK, Appellant.

Supreme Court, Appellate Division Third Department.

Oct. 21, 1993.

Michael R. Traynor, Delmar, for appellant.

De Lorenzo, Gordon, Pasquariello, Weiskopf & Harding, P.C. (Eleanor M. De Coursey of counsel), Schenectady, for respondent.

Before MIKOLL, J.P., and YESAWICH, MERCURE, CREW and MAHONEY, JJ.

MIKOLL, Justice Presiding.

Appeal from that part of an order of the Supreme Court (Doran, J.), entered August 5, 1992 in Schenectady County, which partially granted plaintiff's motion for certain interim relief.

The parties were married on July 28, 1973. Defendant now lives in his own apartment in the City of Albany. There are two issue of the marriage, ages 15 and 17. Supreme Court granted plaintiff exclusive possession of the marital residence and ordered defendant to continue to pay as maintenance the monthly mortgage expenses, auto insurance, homeowners' insurance and joint debts to plaintiff and child support payments of $507 per week. Plaintiff was awarded counsel fees of $2,500 and expert fees of $1,500, with any credit to defendant to await final disposition of the marital proceeding. On this appeal, defendant challenges (1) the temporary award of child support and maintenance in the amount of $3,451.56 as excessive and as not in accord with Domestic Relations Law § 240, and (2) the award of exclusive possession of the marital residence to plaintiff as unwarranted.

"[M]odifications 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" (Suydam v. Suydam, 167 A.D.2d 752, 753, 563 N.Y.S.2d 315; see, Goldberger v. Goldberger, 159 A.D.2d 923, 553 N.Y.S.2d 238; Onorato v. Onorato, 131 A.D.2d 650, 516 N.Y.S.2d 732). Pendente lite awards should accommodate the reasonable needs of the party seeking support and the ability of the other party to provide for such needs. The court is required to set forth the factors it considered and the reasoning underlying its determination (Stern v. Stern, 106 A.D.2d 631, 632, 483 N.Y.S.2d 113).

Here, Supreme Court ordered defendant to pay not only child support, but also the carrying charges on the marital residence. This is improper in that the mortgage payment is intended to insure shelter for defendant's children and should be included in the...