Coon v. Coon, 98980.

CourtNew York Supreme Court Appellate Division
Writing for the CourtSpain
Citation29 A.D.3d 1106,2006 NY Slip Op 03665,814 N.Y.S.2d 781
Docket Number98980.
Decision Date11 May 2006
PartiesKIMBERLY A. COON, Respondent, v. RICHARD W. COON, Appellant.
29 A.D.3d 1106
814 N.Y.S.2d 781
2006 NY Slip Op 03665
KIMBERLY A. COON, Respondent,
v.
RICHARD W. COON, Appellant.
98980.
Appellate Division of the Supreme Court of the State of New York, Third Department.
May 11, 2006.

[29 A.D.3d 1107]

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

29 A.D.3d 1108

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

29 A.D.3d 1109

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...

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4 practice notes
  • Cheney v. Cheney
    • United States
    • New York Supreme Court — Appellate Division
    • July 21, 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
    • April 1, 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
    • February 27, 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., 98966.
    • United States
    • New York Supreme Court Appellate Division
    • May 11, 2006
    ...petitioner's witness, accepted his diagnoses that respondent suffered from impulse control disorder and a personality disorder, and found 29 A.D.3d 1106 that this mental illness prevented respondent from being able to provide proper care for his children now and in the foreseeable future. B......
4 cases
  • Cheney v. Cheney
    • United States
    • New York Supreme Court — Appellate Division
    • July 21, 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
    • April 1, 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
    • February 27, 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., 98966.
    • United States
    • New York Supreme Court Appellate Division
    • May 11, 2006
    ...petitioner's witness, accepted his diagnoses that respondent suffered from impulse control disorder and a personality disorder, and found 29 A.D.3d 1106 that this mental illness prevented respondent from being able to provide proper care for his children now and in the foreseeable future. B......

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