Cheney v. Cheney

• Decision Date: 21 July 2011
• Parties: Holly B. CHENEY, Appellant,v.Edward B. CHENEY, Respondent.
• Court: New York Supreme Court — Appellate Division

86 A.D.3d 833
927 N.Y.S.2d 696
2011 N.Y. Slip Op. 06003

Holly B. CHENEY, Appellant,
v.
Edward B. CHENEY, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

July 21, 2011.

[927 N.Y.S.2d 698]

Law Offices of Norbert J. Sherbunt, Amsterdam (Norbert J. Sherbunt of counsel), for appellant.The Kassner Law Office, Schenectady (Mark A. Kassner of counsel), for respondent.Before: SPAIN, J.P., KAVANAGH, STEIN, GARRY and EGAN JR., JJ.GARRY, J.

Appeals (1) from an order of the Supreme Court (Cortese, J.), entered August 16, 2010 in Montgomery County, which, among other things, partially denied plaintiff's motion for pendente lite relief, and (2) from an order of said court, entered December 15, 2010 in Montgomery County, which denied plaintiff's motion to renew and/or reargue.

Plaintiff and defendant were married in 1997 and have two children (born in 2000 and 2002). During the marriage, defendant was the primary wage earner, while plaintiff cared for the children and worked occasionally in part-time positions. The parties separated in January 2009 and defendant moved out of the marital residence. In June 2009, Montgomery County Family Court issued an order of child support and maintenance (hereinafter the support

[927 N.Y.S.2d 699]

order), upon the parties' consent, directing defendant to pay plaintiff $1,600 per month in child support and $1,500 in maintenance, provide health insurance coverage for plaintiff and the children and pay all unreimbursed medical expenses.

Plaintiff commenced this divorce action against defendant shortly thereafter and, in February 2010, moved for pendente lite relief seeking increased temporary maintenance and child support, counsel fees, expert witness fees, a determination as to whether defendant's enhanced earning capacity is subject to equitable distribution, exclusive possession of the marital residence and an order directing defendant to make payments necessary to protect and preserve the residence. The parties waived oral argument upon this application. In April 2010, while the motion was pending, defendant cross-moved for pendente lite relief, seeking, among other things, a downward modification of the support order on the ground that he had been terminated from his job. During the pendency of this cross motion, Supreme Court temporarily suspended all maintenance payments, reduced defendant's child support obligation, and directed plaintiff to provide health insurance for the children, pay a pro rata share of all unreimbursed medical expenses, and pay her own medical expenses. In opposition, plaintiff asserted that defendant was still earning income and requested a hearing on the issue of changed circumstances. In August 2010, without conducting a hearing, the court issued a determination partially granting both motions. Upon the cross motion, the court reinstated defendant's child support obligation under the support order, continued the suspension of maintenance payments, continued the temporary provisions relative to health insurance and medical costs, and directed plaintiff to pay the carrying charges on the marital residence, while allowing her to seek reallocation at the time of trial. Upon plaintiff's motion, the court denied her requests for counsel fees and expert witness fees, declined to make a determination as to defendant's enhanced earning capacity, and granted her request for exclusive occupancy of the marital residence. Plaintiff sought reargument and renewal, and the court denied the motion. Plaintiff appeals.

This Court does not generally modify pendente lite awards, as the best remedy for any claimed inequities is ordinarily a speedy trial ( see Quarty v. Quarty, 74 A.D.3d 1516, 1516–1517, 902 N.Y.S.2d 237 [2010]; Coon v. Coon, 29 A.D.3d 1106, 1109, 814 N.Y.S.2d 781 [2006] ). However, such awards may be modified when exigent circumstances are shown, such as when “a party is unable to meet his or her financial obligations or justice otherwise requires” ( Colley v. Colley, 200 A.D.2d 839, 839, 606 N.Y.S.2d 796 [1994]; accord Coon v. Coon, 29 A.D.3d at 1109, 814 N.Y.S.2d 781). We find that such exigent circumstances have been demonstrated here, and that modification is required.¹

As the party seeking modification of the existing support order, defendant bore the burden of establishing a substantial change in circumstances upon his cross motion ( see Domestic Relations Law § 236[B][9][b]; Cynoske v. Cynoske, 8 A.D.3d 720, 722, 778 N.Y.S.2d 105 [2004] ). A substantial change in circumstances may be shown when, despite diligent

[927 N.Y.S.2d 700]

efforts, a party fails to find new employment after a job loss ( see Matter of Silver v. Reiss, 74 A.D.3d 1441, 1442, 902 N.Y.S.2d 700 [2010]; Matter of Freedman v. Horike, 26 A.D.3d 680, 682, 809 N.Y.S.2d 649 [2006]; see also Jelfo v. Jelfo, 81 A.D.3d 1255, 1257, 916 N.Y.S.2d 427 [2011] ). Here, defendant sought downward modification of the support order immediately upon losing his job.² He did not allege that he had made any efforts to seek work, but merely asserted that he was “uncertain” whether or when he would be able to find new employment. This allegation was insufficient and, thus, defendant did not establish that he was entitled to modification of the support order ( see Matter of Freedman v. Horike, 26 A.D.3d at 682, 809 N.Y.S.2d 649; Nichols v. Nichols, 19 A.D.3d 775, 779, 797 N.Y.S.2d 139 [2005] ).

Further, even if defendant had met this threshold requirement, his cross...