Wallach v. Wallach

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: ROSENBLATT
• Citation: Wallach v. Wallach, 654 N.Y.S.2d 692, 236 A.D.2d 604 (N.Y. App. Div. 1997)
• Decision Date: 24 February 1997
• Parties: Robert M. WALLACH, Respondent, v. Gale Ann WALLACH, Appellant.

Page 692

654 N.Y.S.2d 692

236 A.D.2d 604

Robert M. WALLACH, Respondent, v. Gale Ann WALLACH, Appellant.

Supreme Court of New York, Appellate Division Second Department.

Feb. 24, 1997.

Unger and Stutman, LLP, New York City (Michael Stutman, of counsel), for appellant.

Samuelson, Rieger & Yovino, Garden City (Elliot D. Samuelson, of counsel), for respondent.

In an action for a divorce and ancillary relief, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Dunn, J.), dated December 18, 1995, as (1) awarded her only $2,500 per month for temporary child support, $2,500 for temporary maintenance, $10,000 for interim accountant fees, and $10,000 for interim counsel fees, and (2) denied her exclusive possession of the marital residence.

ORDERED that the order is affirmed insofar as appealed from, with costs.

Modifications of pendente lite awards should rarely be made by an appellate court and then only under exigent circumstances such as where a party is unable to meet his or her financial obligations or justice otherwise requires (see, Beige v. Beige, 220 A.D.2d 636, 632 N.Y.S.2d 826; Bagner v. Bagner, 207 A.D.2d 367, 615 N.Y.S.2d 737). The general rule is that the proper remedy for any perceived inequity in a pendente lite award is a speedy trial (see, Campanella v. Campanella, 232 A.D.2d 598, 648 N.Y.S.2d 698; Gianni v. Gianni, 172 A.D.2d 487, 568 N.Y.S.2d 113). As this court has repeatedly noted, pendente lite awards should be an accommodation between the reasonable needs of the moving spouse and the financial ability of the other spouse (see, Polito v. Polito, 168 A.D.2d 440, 562 N.Y.S.2d 561; Shapiro v. Shapiro, 163 A.D.2d 294, 557 N.Y.S.2d 154), and they are to be determined with due regard for the preseparation standard of living (see, Salerno v. Salerno, 142 A.D.2d 670, 531 N.Y.S.2d 101). In light of the foregoing, we conclude that the pendente lite order of the Supreme Court awarding child support and temporary maintenance is proper under the circumstances of this case and should not be disturbed.

In addition, the Supreme Court properly declined to grant the defendant exclusive possession of the marital residence at this time, as she failed to establish that it is necessary to protect the safety of persons or property (cf., Joseph v. Joseph, 230 A.D.2d 716, 646 N.Y.S.2d 167; Ljutic v. Ljutic, 216 A.D.2d 274, 627 N.Y.S.2d 759).

The defendant's remaining contentions are without...