STEERS III v. STEERS

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Supreme Court, Appellate Division, Second Department, New York.

James R. STEERS III, Appellant, v. Susan STEERS, Respondent.

Decided: January 27, 1997

Before O'BRIEN J.P., and FLORIO, McGINITY and LUCIANO, JJ. Reisman, Peirez, Reisman & Calica, Garden City (Seymour Reisman, Michael J. Angelo, and Susan T. Kluewer, of counsel), for appellant. Del Vecchio & Recine, Garden City (Phyllis Recine, of counsel), for respondent.

In an action for a divorce and ancillary relief, the plaintiff appeals (1) as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Feuerstein, J.), entered September 2, 1994, as denied those branches of his motion which were to reduce his child support obligation under a pendente lite support order and permit him to withdraw moneys from the parties' joint funds, and granted the wife's cross motion for leave to enter a judgment for arrears in child support, and to modify a prior order of the same court dated December 3, 1993, so as to allow her to retain possession of certain funds originally held in a joint account, and (2) from a judgment of the same court, entered September 29, 1994, which was in favor of the defendant wife and against him for child support arrears in the principal sum of $6,900.

ORDERED that the order is affirmed insofar as appealed from, and it is further,

ORDERED that the judgment is affirmed;  and it is further,

ORDERED that the respondent is awarded one bill of costs.

 Modifications of pendente lite support awards should rarely be made by an appellate court, and then only under clearly exigent circumstances, such as where the party directed to pay the support is unable to meet his or her financial obligations, or where justice otherwise requires (see, e.g., Fried v. Fried, 225 A.D.2d 584, 639 N.Y.S.2d 738 [2d Dept. 1996];  Zeitlin v. Zeitlin, 209 A.D.2d 613, 614, 619 N.Y.S.2d 658;  Gitter v. Gitter, 208 A.D.2d 895, 617 N.Y.S.2d 895).   The general rule continues to be that the proper remedy for any perceived inequity in an award of support made pendente lite is a speedy trial (see, Forbush v. Forbush, 115 A.D.2d 335, 496 N.Y.S.2d 311).

 The plaintiff husband, an experienced civil engineer, failed to establish his entitlement to the relief requested, a downward modification of his obligation to pay pendente lite child support and leave to invade marital assets for his own maintenance, on the ground that he had no income (cf., e.g., Sloan v. Sloan, 127 A.D.2d 650, 512 N.Y.S.2d 1;  Klein v. Klein, 125 A.D.2d 450, 509 N.Y.S.2d 380).   Although it appears that a construction project on which he was employed terminated in December 1993, the record reflects that the husband collects investment income of some $60,000 a year from his 18% interest in a subchapter “S” corporation, and that in 1994 he incorporated his own construction business.   To the extent that the latter enterprise initially generated less income than might have been realized had the husband sought new employment, any alleged hardship was self-inflicted (see, e.g., Kay v. Kay, 37 N.Y.2d 632, 376 N.Y.S.2d 443, 339 N.E.2d 143;  Stempler v. Stempler, 200 A.D.2d 733, 607 N.Y.S.2d 111;  Matter of Kronenberg v. Kronenberg, 101 A.D.2d 951, 475 N.Y.S.2d 638;  Matter of Doscher v. Doscher, 80 A.D.2d 945, 438 N.Y.S.2d 28, affd. 54 N.Y.2d 655, 442 N.Y.S.2d 507, 425 N.E.2d 896).   In any event, the husband submitted no evidence to support his contention that his new business is not prospering, and made no showing of any good faith efforts to secure an income commensurate with his qualifications and experience (see, e.g., Stempler v. Stempler, supra;  Epel v. Epel, 139 A.D.2d 488, 526 N.Y.S.2d 592).

We have considered the husband's remaining contentions and find them to be without merit.

MEMORANDUM BY THE COURT.

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