Ryan v. Ryan

• Decision Date: 28 September 1992
• Citation: Ryan v. Ryan, 588 N.Y.S.2d 341, 186 A.D.2d 245 (N.Y. App. Div. 1992)
• Parties: Marilyn C. RYAN, Respondent v. William V. RYAN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 341

588 N.Y.S.2d 341

186 A.D.2d 245

Marilyn C. RYAN, Respondent v. William V. RYAN, Appellant.

Supreme Court, Appellate Division Second Department.

Sept. 28, 1992.

Capetola & Doddato, Williston Park (Judith A. Ackerman, of counsel), for appellant.

Barbara & Barbara, Carle Place (Roni J. Devack, of counsel), for respondent.

Before ROSENBLATT, J.P., and EIBER, O'BRIEN and RITTER, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the defendant husband appeals from so much of an order of the Supreme Court, Nassau County (Di Noto, J.), dated February 27, 1990, as granted the plaintiff wife's motion for pendente lite relief to the extent of directing that he pay the plaintiff wife, pendente lite, the weekly sums of $100 in maintenance and $338.06 in child support, as well as the monthly carrying charges on the marital residence of $1,382.03.

ORDERED that the order is modified, on the law and as a matter of discretion, by deleting the provision thereof that directs the defendant to pay the sum of $338.06 per week, pendente lite, for the support of the parties' two children, and substituting therefor a provision awarding the plaintiff $257.66 per week in child support, and by deleting the provision thereof that directs the defendant to pay the sum of $100 per week, pendente lite, to the plaintiff for maintenance; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff Marilyn Ryan and the defendant William Ryan were married on January 30, 1965. The parties have two daughters, who reside with their mother in the marital residence in Glen Cove, New York. The plaintiff wife is employed in a clerical position, and her gross income in 1989 was approximately $20,500. The defendant husband is an electrical engineer, and his gross income in 1989, including a merit bonus and overtime compensation, was approximately $74,000. The wife commenced this action for a divorce in November 1989 and, shortly thereafter, she moved, inter alia, to compel the husband to pay the carrying charges for the marital residence, child support, and maintenance pendente lite. The Supreme Court granted the wife's motion for pendente lite relief, and directed the husband to pay maintenance in the sum of $100 per week, child support in the sum of $338.06 per week, and carrying charges for the marital residence in the sum of $1,382.03 per month.

On appeal, the husband contends that the Supreme Court improvidently exercised its discretion in determining pendente lite child support in accordance with the formula set forth in the Child Support Standards Act (Domestic Relations Law § 240). We disagree. Although application of the guidelines set forth in the Child Support Standards Act is not mandatory on a pendente lite motion, the court properly exercised its statutory authority to apply those guidelines based upon the record before it (see, Asteinza v. Asteinza, 173 A.D.2d 515, 570 N.Y.S.2d 583; Rizzo v. Rizzo, 163 A.D.2d 15, 558 N.Y.S.2d 12).

We find, however, that the Supreme Court erred in directing the husband to defray the carrying charges for the marital residence in addition to providing child support in the sum fixed by statute. As the appellate courts have uniformly noted, shelter costs attributable to the children are inherent in the basic child support obligation set forth by Domestic Relations Law § 240 (see, Chasin v. Chasin, 182 A.D.2d 862, 582 N.Y.S.2d 512; Shields v. Shields, 178 A.D.2d 923, 578 N.Y.S.2d 790; Krantz v. Krantz, 175 A.D.2d 865, 573 N.Y.S.2d 738; James v. James, 169 A.D.2d 441, 564 N.Y.S.2d 334). Accordingly, it was improper for the court to compel payment of the carrying charges...