Wagner v. Wagner
| Decision Date | 11 July 1991 |
| Citation | 175 A.D.2d 391,572 N.Y.S.2d 462 |
| Parties | Gail B. WAGNER, Respondent, v. Steven L. WAGNER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Dranoff & Johnson (Mitchell Y. Cohen, of counsel), Pearl River, for appellant.
Hirshfeld & Hirshfeld (Neal L. Hirshfeld, of counsel), Nyack, for respondent.
Before CASEY, J.P., and WEISS, MIKOLL, CREW and HARVEY, JJ.
Appeal (transferred to this court by order of the Appellate Division, Second Department) from an order of the Supreme Court (Weiner, J.), entered June 20, 1990 in Rockland County, which, inter alia, partially granted plaintiff's motion for certain pendente lite relief.
Plaintiff and defendant have been married for 10 years and have three minor children. Plaintiff commenced this action against defendant seeking a divorce based upon cruel and inhuman treatment and moved pendente lite for maintenance and child support. Defendant opposed her motion and cross-moved pendente lite for visitation of the parties' children.
Plaintiff is a physical therapist and works at a local medical center in Rockland County. She also maintains a small private practice for physical therapy. Defendant is a school teacher who formerly worked as a certified public accountant. During the tax season he prepares tax returns and maintains a small private practice for tax return preparations for his own clients. Both parties submitted net worth statements and provided a copy of their recent pay stubs. Supreme Court directed defendant to pay $450 per week in child support and $50 per week in maintenance. This appeal ensued.
The sole issue on this appeal is whether Supreme Court's award of child support and maintenance was excessive. At the outset, we note that this court does not favor modifying pendente lite awards, except when the ordered payments are so prohibitive as to prevent the payor spouse from meeting his/her own financial obligations or where justice otherwise requires (see, Holmes v. Holmes, 151 A.D.2d 911, 542 N.Y.S.2d 884; Chyrywaty v. Chyrywaty, 102 A.D.2d 1009, 477 N.Y.S.2d 884). The primary concern of the court in determining an application for temporary maintenance is the respective financial conditions of the parties and the movant's need for such support pending trial (see, Onorato v. Onorato, 131 A.D.2d 650, 516 N.Y.S.2d 732). This court's authority is as broad as that of the Supreme Court, and it may substitute a discretionary determination for that of the Supreme...
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