Dane v. Dane
| Decision Date | 15 April 1999 |
| Citation | 688 N.Y.S.2d 754,260 A.D.2d 817 |
| Parties | JENNIFER K. DANE, Respondent,<BR>v.<BR>FRANCIS DANE, Appellant. |
| Court | New York Supreme Court — Appellate Division |
The parties, who were married in 1988 and have one daughter, owned and operated three video rental stores, a liquor store and income property. Plaintiff commenced this action for a divorce in September 1997 and thereafter sought certain pendente lite relief. At issue on this appeal is that portion of Supreme Court's order which directed defendant to pay temporary child support in the amount of $185 per week and $1,500 toward plaintiff's counsel fees at the rate of $75 per month. Defendant contends that Supreme Court improperly calculated his income, and consequently his child support obligation, and that based on the parties' relative financial circumstances it is inequitable to compel him to pay plaintiff's counsel fees.
We have consistently followed the general rule that grants of pendente lite relief should be modified only where compelling circumstances demonstrate a party's inability to meet his or her financial obligations, or where intervention is required in the interest of justice (see, Twaite v Twaite, 235 AD2d 616; Moshy v Moshy, 227 AD2d 182; Newkirk v Newkirk, 194 AD2d 842; Marr v Marr, 181 AD2d 974). Nothing in the record persuades us that deviation from this general rule is warranted here.
Before Supreme Court on plaintiff's motion were the financial affidavits of the parties and portions of their 1996 income tax returns showing $134,084 gross business income from the video rental stores. Of the claimed business expenses totaling $139,829, the court noted that approximately $58,000 represented depreciation and vehicle expenses which did not represent actual out-of-pocket expenditures. The court therefore estimated defendant's income at $58,000 and calculated his child support obligation accordingly. Contrary to defendant's assertions, it is within the trial court's discretion to exclude depreciation expenses since they do not affect disposable income or otherwise impact on the ability to pay child support (see, Barber v Cahill, 240 AD2d 887; Matter of Westchester County Dept. of Social Servs. [Rosa B.] v Jose C., 204 AD2d 795, 798). Defendant further contends that it was error to impute this sum as income because the 1996 tax return figures were based on income from all three video stores, whereas the most profitable store was transferred to...
To continue reading
Request your trial
-
Noble v. Noble
...abuse of its considerable discretion ( see Bellinger v. Bellinger, 46 A.D.3d 1200, 1203, 847 N.Y.S.2d 783 [2007]; Dane v. Dane, 260 A.D.2d 817, 818-819, 688 N.Y.S.2d 754 [1999] ). Defendant's remaining contentions, to the extent not specifically addressed herein, have been reviewed and foun......
-
T.H. v. G.M.
...as the Court does not finds that those five (5) aforesaid expenses affect or impact the Defendant's ability to pay support (see Dane v. Dane, supra), and no proof of those expenses were submitted on this application. As a final point, any perceived inequity in these finding(s) for purposes ......
-
Lang v. Lang
...233 [2003] ), we have previously permitted interim counsel fee awards without a full evidentiary hearing ( see Dane v. Dane, 260 A.D.2d 817, 819, 688 N.Y.S.2d 754 [1999] ). The Third Department cases cited by defendant are inapposite since, procedurally, those cases did not contemplate any ......
-
Haas v. Haas
...expenses of $7,309 that did "not affect disposable income or otherwise impact on the ability to pay child support" (Dane v. Dane, --- A.D.2d ----, 688 N.Y.S.2d 754; see, Baraby v. Baraby, 250 A.D.2d 201, 204-205, 681 N.Y.S.2d 826; Matter of Mireille J. v. Ernst F. J., 220 A.D.2d 503, 504, 6......