Lazich v. Lazich

• Decision Date: 11 January 1993
• Citation: Lazich v. Lazich, 592 N.Y.S.2d 415, 189 A.D.2d 750 (N.Y. App. Div. 1993)
• Parties: Janice Mary LAZICH, Respondent, v. William J. LAZICH, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 415

592 N.Y.S.2d 415

189 A.D.2d 750

Janice Mary LAZICH, Respondent, v. William J. LAZICH, Appellant.

Supreme Court, Appellate Division Second Department.

Jan. 11, 1993.

William J. Lazich, Tarrytown (Peter Edelman, of counsel), for appellant pro se.

Vittoria & Parker, White Plains (Steven Jon Levine, of counsel), for respondent.

Before THOMPSON, J.P., and BALLETTA, ROSENBLATT and EIBER, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the defendant husband appeals from (1) stated portions of an order of the Supreme Court, Westchester County (Burrows, J.), dated July 13, 1990, which, inter alia, denied those branches of his motion which were for vacatur of a previous order of the same court dated July 6, 1989, which permitted the plaintiff wife's attorneys to manage certain escrow funds, and awarded the plaintiff wife $300 per week in child support, and $1,150 per month in rent, for joint custody pendente lite, for a direction that escrow funds derived from the sale of the marital home be deposited with the Westchester County Commissioner of Finance, and for recusal of Justice Burrows, and awarded the plaintiff wife $11,250 in interim counsel fees, and (2) stated portions of an order of the same court, also dated July 13, 1990, which, inter alia, denied his application for downward modification of pendente lite child support and for certain disclosure.

ORDERED that the first order is modified, on the law and as a matter of discretion, by deleting the provisions thereof which denied that branch of the defendant husband's motion which were to direct that the escrow fund be turned over to the Westchester County Commissioner of Finance and which granted interim counsel fees, and substituting therefor provisions directing that the escrow funds be turned over to the Westchester County Commissioner of Finance, and denying the plaintiff interim counsel fees, on the ground that the plaintiff did not properly substantiate her request for interim counsel fees; as so modified, that order is affirmed insofar as appealed from, without costs or disbursements; and it is further,

ORDERED that the second order is modified, as a matter of discretion, by reducing pendente lite child support from $300 per week plus $1,150 per month in rent to $250 per week only, retroactive to December 7, 1989, the date the motion for downward modification of child support was made; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

This appeal arises out of a bitterly contested action for divorce and ancillary relief in which both parties have accused the other of various acts of misconduct. During the pendency of the litigation, the trial court issued various orders for pendente lite relief including, inter alia, awarding the wife custody of the children, directing the husband to pay child support and ordering all visits between the minor daughter and the husband to be supervised by a mental health professional. Further, although the wife was also awarded possession of the marital home after the husband defaulted on the mortgage payments he was ordered to make, the house was sold and the proceeds placed into escrow. Delinquent support payments have been drawn from this fund. On appeal, the husband, who is conducting this litigation pro se, alleges numerous errors in the court's award of pendente lite relief.

Awards of pendente lite child support payments are in the sound discretion of the trial court based on an inquiry into the "reasonable needs" of the custodial parent and child and the noncustodial parent's ability to pay (see, Friedman v. Friedman, 163 A.D.2d 461, 558 N.Y.S.2d 157; Kristiansen v. Kristiansen, 144 A.D.2d 441, 534 N.Y.S.2d 104). Further, although disputes concerning support payments are better remedied by a speedy trial rather than by appeal (see, e.g., Isham v. Isham, 123 A.D.2d 742, 507 N.Y.S.2d 215; Perelman v. Perelman, 110 A.D.2d 629, 487 N.Y.S.2d 118), this court can, under appropriate circumstances, substitute its discretion for that of the trial court (see, e.g., Isham v. Isham, supra ). Since the award of child support amounted to $29,400 per year, while the husband only earns $50,000 per year and the wife has her own income of $30,000, per year, his application for downward modification of pendente lite child support should have been granted, and child support reduced to $250 per week, retroactive to December 7, 1989, the date the application for downward modification was made.

The husband asserts that the court erred when it refused to grant him a hearing concerning custody and visitation. However, contrary to the husband's assertions, the court did not err in granting pendente lite custody and visitation without first holding a hearing under the facts of this case (see, Krantz v. Krantz, 175 A.D.2d 863, 573 N.Y.S.2d 736; Askinas v. Askinas, 155 A.D.2d 498, 547 N.Y.S.2d 360). Moreover, the husband...