BLAKE v. BLAKE (2018)

Order, Supreme Court, New York County (Frank P. Nervo, J.), entered March 9, 2017, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for pendente lite relief to the extent of ordering defendant to pay plaintiff, pendente lite, monthly spousal maintenance and basic child support retroactive to November 16, 2015, 78% of all school-related, child care, and extracurricular activity expenses for the parties' children, 78% of the carrying expenses on the marital residence, 78% of expenses related to the use of plaintiff's vehicle, and interim counsel and expert fees, and denied, sub silentio, defendant's cross motion to transfer the matter to New Jersey, unanimously modified, on the law, to delete the awards of carrying expenses on the marital residence and expenses related to the use of plaintiff's vehicle, and otherwise affirmed, without costs.

Defendant failed to establish that modification of the pendente lite maintenance and basic child support awards before trial is warranted (see e.g. Wittich v. Wittich, 210 A.D.2d 138, 140, 620 N.Y.S.2d 351 [1st Dept. 1994] ).  He argues that the court erred in attributing income to him of $833,605, and claims that that number does not represent his actual take-home pay, whereas the $226,340 cash distribution from his solely-owned investment banking firm, Brocair Partners, LLC, does.  The court was not required to rely upon defendant's own account of his finances, and, in any event, the remedy for a dispute as to the proper amount of defendant's income is a prompt trial (id.).

The court acted within its discretion in departing from Child Support Standards Act guidelines for purposes of calculating defendant's pendente lite child support obligations (see Asteinza v. Asteinza, 173 A.D.2d 515, 570 N.Y.S.2d 583 [2d Dept. 1991] ) and in considering the parties' resources and the family's pre-commencement standard of living (see Lapkin v. Lapkin, 208 A.D.2d 474, 617 N.Y.S.2d 327 [1st Dept. 1994] ).  However, the court erred by, without explanation, ordering defendant to pay carrying costs on the marital residence and vehicle expenses, in addition to the temporary maintenance and child support awarded, since these amounts are encompassed in the maintenance and child support awards (see Francis v. Francis, 111 A.D.3d 454, 975 N.Y.S.2d 13 [1st Dept. 2013] ).

No basis exists to grant defendant's motion to transfer this matter to New Jersey.  Under CPLR 327, the forum non conveniens statute, a court may not transfer a matter to another state, but may only stay or dismiss the action, relief defendant did not seek.  In any event, we implicitly rejected defendant's arguments in a previous appeal (156 A.D.3d 523, 65 N.Y.S.3d 454 [2017] ), and see no reason, at this stage of the litigation, to stay or dismiss the action to allow the financial matters to be litigated in New Jersey.