DONOHUE v. DONOHUE (1999)

In a matrimonial action in which the parties were divorced by a judgment entered July 3, 1995, the defendant former husband appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Nicolai, J.), entered December 22, 1997, as denied that branch of his motion which was to modify his child support obligation pending determination of his application for custody of the parties' children.

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

The parties' judgment of divorce granted the plaintiff sole custody of the parties' four children and required the defendant to pay $126 a week in child support.   In October 1997 the defendant moved to modify his child support obligation pending a hearing on his application for a change of custody on the ground that two of the parties' children were residing with him.   The Supreme Court denied that branch of the defendant's motion which was to modify his support obligation pending the custody hearing, and the court held the issue of child support in abeyance for determination at the hearing.

Although a change in custody would require recalculation of the parties' child support obligations to accommodate a split custody arrangement (see, e.g., Riseley v. Riseley, 208 A.D.2d 132, 622 N.Y.S.2d 387;  Matter of Kerr v. Bell, 178 A.D.2d 1, 581 N.Y.S.2d 879), we conclude that under the circumstances of this case, the court did not err in denying the defendant interim relief.   Continuation of the child support obligation set forth in the divorce judgment would permit the wife to maintain the standard of living formerly enjoyed by the children pending a final determination of custody, and the defendant failed to establish that continuation of such payments would cause him hardship.   Furthermore, the defendant failed to submit a net worth statement as required by 22 NYCRR 202.16(k)(2) (see, Miller-Glass v. Glass, 237 A.D.2d 723, 653 N.Y.S.2d 982;  Tacconi v. Tacconi, 197 A.D.2d 929, 604 N.Y.S.2d 852).

We note that the defendant has not appealed from the order entered after the custody hearing which prospectively reduced his child support obligation.

MEMORANDUM BY THE COURT.