Coon v. Coon

Decision Date11 May 2006
Docket Number98980.
PartiesKIMBERLY A. COON, Respondent, v. RICHARD W. COON, Appellant.
CourtNew York Supreme Court — Appellate Division

Appeal from an order of the Supreme Court (Hummel, J.), entered October 24, 2005 in Columbia County, which, inter alia, partially granted plaintiff's motion for certain pendente lite relief.

Spain, J.

This is the second action for divorce between the parties, who were married in 1985 and have five children. In 2004, defendant commenced a divorce action (hereinafter the first action). While the first action was pending, plaintiff resided in the former marital residence and was awarded temporary custody of the children. Defendant resided in a single bedroom apartment, too small to accommodate the children. During that time period, Supreme Court issued a temporary order directing, among other things, that defendant pay $786 per week in child support, the carrying charges associated with the former marital residence, as well as other expenses. Defendant was also prohibited from transferring or encumbering his business, First Fuel & Heating, Inc., the marital residence and the parties' rental properties. During the pendency of the first action, defendant was held in contempt for his willful failure to pay child support in accordance with the temporary order. Plaintiff contested the divorce and, after a trial, the first action ultimately was dismissed in December 2004 for lack of grounds.

Following the dismissal of the first action, defendant took out a home equity loan against the marital residence in the amount of $200,000. He also sold his business, First Fuel & Heating, to his parents for $290,000 after obtaining a fair market appraisal at that value. In June 2005, he used $71,000 of the proceeds of the sale of the business to purchase a home at the price of $250,000. At that point, according to defendant, the three youngest children—a son born in 1988 and twin sons born in 1991—began spending four nights a week at defendant's home.1

In July 2005, seven months after dismissal of the first action, plaintiff commenced this divorce action and, by order to show cause, immediately sought a finding of contempt against defendant for violating the terms of temporary orders issued in the first action by encumbering and transferring marital property, as well as other relief. Supreme Court (Connor, J.) ordered defendant to pay off the home equity mortgage on the marital residence, prohibited him from transferring or further encumbering that property and granted plaintiff $10,000 in interim counsel fees. On September 2, 2005, plaintiff then moved, on notice, for temporary maintenance, temporary child support for all five children, health insurance and additional interim counsel fees. Thirteen days later, by order to show cause, plaintiff moved—ex parte—for temporary custody of the parties' children and for an order directing defendant to pay the mortgage on the marital property, which was in default. Supreme Court (Hummel, J.), signed that ex parte order, dated September 15, 2005, granting physical custody of the two youngest children to plaintiff, pending the determination of her motion, and directing defendant to make all outstanding payments due on the mortgage on the marital residence and to continue to make timely mortgage payments. Defendant cross-moved for physical custody of the three boys.

In the October 2005 order from which defendant now appeals, Supreme Court denied plaintiff's motion to hold defendant in contempt based on his failure to comply with temporary orders issued in the first action, finding that those temporary orders were not continued following the dismissal of the first action. The court recognized, however, that plaintiff had appropriately been granted a judgment against defendant for unpaid child support that accrued during the pendency of the first action. The court also ordered defendant to continue to provide health insurance coverage for the family, to refrain from further encumbering or transferring the parties' real property, to pay off the home equity loan on the marital residence and to pay all carrying costs on the marital residence, totaling $37,375 per year. Those aspects of the court's order are not at issue in this appeal. The court, however, also awarded plaintiff temporary custody of all five children, $786 per week in temporary child support, retroactive to the commencement of this action, and $5,000 in counsel fees. It is these aspects of the pendente lite relief ordered by the court which defendant challenges on appeal.

We begin our consideration of defendant's objections by acknowledging that "modification of pendente lite awards rarely should 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" (Colley v Colley, 200 AD2d 839, 839 [1994]). Typically, "the most appropriate remedy for any claimed inequity in a temporary award is a speedy trial" (id. at 840). Here, however, we are troubled that the award of temporary custody was made without first conducting an evidentiary hearing and without the benefit of a law guardian appointed to represent the children's interests. Moreover, the parties readily admit that Supreme Court's scheduling order for this action has been essentially ignored and, given the tangle of litigation that has already been woven, any chance at a speedy trial resulting in a final order seems dubious. Contrary to Supreme Court's conclusion, we find that defendant has set forth sufficient evidentiary allegations to warrant a determination of the issue of custody at this time. From the parties' submissions, it appears undisputed that defendant had enjoyed a significant amount of physical custody of the three boys in the summer of 2005 since moving from an apartment into his house. Contending that it is in the best interests of the boys, defendant wishes to continue that arrangement. The fact that all of the children resided with plaintiff during the pendency of the first action and that defendant, then residing in the small apartment, did not object to that arrangement is not dispositive of what is now in the best interests of the children. Accordingly, a hearing should be held—with findings of fact—to ensure that Supreme Court's temporary determination—now seven months old—is in the best interests of the children (see Femia v Femia, 23 AD3d 1073, 1073 [2005]; Colley v Colley, supra at 840; Robert C.R. v Victoria R., 143 AD2d 262, 264 [1988]; cf. Matter of Houck v Garraway, 293 AD2d 782, 784 [2002]).2

Although Supreme Court's resolution of the temporary custody issue may render defendant's challenge to his support obligation academic, we will address the support issue in the event that Supreme Court determines, after a hearing, to award temporary custody to plaintiff. Defendant contends that the court made several errors in computing child support which resulted in an obligation which exceeds his income thus constituting, according to defendant, an exigent circumstance warranting modification of the pendente lite order (see Colley v Colley, supra at 839). In the first action, Supreme Court calculated defendant's child support obligation by including the depreciation amount claimed by his business. In this action, although defendant transferred the business during the hiatus between the parties' divorce actions, the court imputed the corporate depreciation to defendant as income. Hence, on paper, defendant's court-ordered expenses exceed his reported income. A court, however, may impute income to a party "based upon former earnings or earning capacity where the court determines that a parent intentionally reduced his or her earnings for the purposes of mitigating or avoiding child support" (Matter of Kelly v Bovee, 9 AD3d 641, 642 [2004]; see Spencer v Spencer, 298 AD2d 680, 681 [2002]). Given the record evidence that, following the dismissal of the first divorce action, defendant sold his business, borrowed extensively and invested heavily in a new home, including the purchase of new furniture and the installation of an in-ground swimming pool, we will not interfere with Supreme Court's conclusion that defendant's claims of financial crisis, if sincere, are the product of his own actions. Under these circumstances, we find that Supreme Court did not abuse its considerable discretion in deciding to impute income to defendant at the...

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4 cases
  • Cheney v. Cheney
    • United States
    • New York Supreme Court Appellate Division
    • 21 July 2011
    ...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 unab......
  • Sember v. Sember
    • United States
    • New York Supreme Court Appellate Division
    • 1 April 2010
    ...reside should have been subtracted from the parties' gross annual income before computing his share of child support ( see Coon v. Coon, 29 A.D.3d 1106, 1111, 814 N.Y.S.2d 781 [2006]; O'Connor v. O'Connor, 241 A.D.2d 648, 649, 660 N.Y.S.2d 173 [1997]; Posson v. Posson, 229 A.D.2d 690, 692-6......
  • Jordan v. Jordan
    • United States
    • New York Supreme Court Appellate Division
    • 27 February 2014
    ...86 A.D.3d 833, 834–835, 927 N.Y.S.2d 696 [2011];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] ). That clearly is not the case here. Even a cursory examination of the parties' respective financial circumstance......
  • In the Matter of Michael Ww.
    • United States
    • New York Supreme Court Appellate Division
    • 11 May 2006

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