De La Roche v. De La Roche

• Decision Date: 01 November 1994
• Citation: 209 A.D.2d 157,617 N.Y.S.2d 767
• Parties: German DE LA ROCHE, Plaintiff-Appellant, v. Nohra DE LA ROCHE, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 767

617 N.Y.S.2d 767

209 A.D.2d 157

German DE LA ROCHE, Plaintiff-Appellant, v. Nohra DE LA ROCHE, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

Nov. 1, 1994.

Before MURPHY, P.J., and CARRO, ELLERIN, WALLACH and KUPFERMAN, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (David B. Saxe, J.), entered February 15, 1994, which, inter alia, awarded defendant $1,000 temporary maintenance per week, considered neither income to defendant nor deductible to plaintiff for taxation purposes, $350 weekly child support, and directed plaintiff to maintain in full force and effect all present policies of insurance, to pay all unreimbursed pharmaceutical, optical, non-elective medical and dental expenses for the children and to pay the children's private school tuition and related school expenses, unanimously affirmed, without costs. Order of the same court and justice, entered June 6, 1994, which, inter alia, granted defendant's motion to compel plaintiff to comply with document production and denied plaintiff's cross-motion for downward modification of the temporary maintenance award, unanimously modified on the law, to the extent of remanding the matter to the IAS court and directing plaintiff to submit the challenged legal bills for an in camera inspection for determination as to whether the documents are protected from disclosure pursuant to the attorney/client privilege, and otherwise affirmed, without costs.

The court's award of temporary maintenance and child support was not excessive. Thorough review of the record indicates that the court was presented with discrepancies in the facts presented in the parties' conflicting affidavits, as well as inconsistencies apparent on the fact of the payor spouse's own submissions, and therefore the most effective means of resolving the parties' dispute over the amounts awarded is to conduct a prompt trial. (Corsini v. Corsini, 178 A.D.2d 356, 578 N.Y.S.2d 403). Moreover, considering the conflicting evidence, the court did not abuse its discretion in providing that the maintenance payments be neither deductible to plaintiff nor taxable to defendant (Lasry v. Lasry, 180 A.D.2d 488, 579 N.Y.S.2d 393).

Plaintiff's subsequent cross-motion for downward modification of the award was properly denied since he failed to provide the court with any reasonable excuse as to why he did not inform the court of the effect of increases in FICA and federal tax deductions already scheduled to go into effect at the time of the original application (Foley v. Roche, 68 A.D.2d 558, 568, 418 N.Y.S.2d 588). In any event, the court did not err in refusing to modify the award since documentary evidence submitted by defendant indicated that plaintiff had misrepresented his financial status.

Plaintiff's claim that defendant is not entitled to discovery of his passports and visas is without merit. "In a matrimonial action, under equitable distribution and Domestic Relations Law § 236(B)(4), broad financial disclosure is necessary and...