LLOYD v. McGRATH

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

James LLOYD, Respondent-Appellant, v. Grace Cutting McGRATH, Appellant-Respondent.

Decided: January 26, 1998

Before RITTER, J.P., and ALTMAN, FRIEDMANN and LUCIANO, JJ. Samuelson, Rieger & Yovino, Garden City (Wendy B. Samuelson, of counsel), for appellant-respondent. Alexander H. Potruch, P.C., Mineola, for respondent-appellant.

 In an action for a divorce and ancillary relief, the defendant wife appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Gazzillo, J.), dated February 3, 1997, as (1) awarded her only $400 per week pendente lite child support, (2) awarded her only $200 per week pendente lite maintenance, and (3) failed to direct the plaintiff to pay the outstanding balance on the parties' charge card.   The plaintiff husband cross-appeals from the same order.

ORDERED that the cross appeal is dismissed as abandoned;  and it is further,

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

ORDERED that the plaintiff is awarded one bill of costs.

 The court did not improvidently exercise its discretion in requiring the plaintiff to pay only $600 a week total for pendente lite maintenance and child support.   The court properly considered both the financial needs of the defendant and the parties' respective financial conditions (see, e.g., Domestic Relations Law § 236[B][6], [7];  Fascaldi v. Fascaldi, 186 A.D.2d 532, 588 N.Y.S.2d 354;  Chachkes v. Chachkes, 107 A.D.2d 786, 787, 484 N.Y.S.2d 619;  Van Ess v. Van Ess, 100 A.D.2d 848, 474 N.Y.S.2d 90).  The award strikes a proper balance between the reasonable needs of the defendant and the financial ability of the plaintiff to pay (see, Salerno v. Salerno, 142 A.D.2d 670, 672, 531 N.Y.S.2d 101), taking into account their pre-separation standard of living (see, Ferdinand v. Ferdinand, 215 A.D.2d 350, 625 N.Y.S.2d 650;  Wagner v. Wagner, 175 A.D.2d 391, 572 N.Y.S.2d 462), as well as the defendant's substantial assets (see, Domestic Relations Law § 240[1-b];  see, e.g., Van Ess v. Van Ess, 100 A.D.2d 848, 474 N.Y.S.2d 90;  Dyson v. Dyson, 92 A.D.2d 857, 459 N.Y.S.2d 1020;  Thea v. Thea, 75 A.D.2d 618, 427 N.Y.S.2d 56;  see also, Lapkin v. Lapkin, 208 A.D.2d 474, 617 N.Y.S.2d 327;  Nordgren v. Nordgren, 237 A.D.2d 498, 655 N.Y.S.2d 585).  Where, as here, a pendente lite award is not deficient, the proper remedy to correct any inequity is a speedy trial, where any error can be rectified on a full record, retroactive to the date of the defendant's application for pendente lite support (see, e.g., Campanella v. Campanella, 232 A.D.2d 598, 648 N.Y.S.2d 698;  Beige v. Beige, 220 A.D.2d 636, 632 N.Y.S.2d 826;  Gianni v. Gianni, 172 A.D.2d 487, 568 N.Y.S.2d 113;  see also, Nolfo v. Nolfo, 188 A.D.2d 451, 590 N.Y.S.2d 902;  cf., Bernstein v. Bernstein, 213 A.D.2d 508, 624 N.Y.S.2d 45;  Byer v. Byer, 199 A.D.2d 298, 604 N.Y.S.2d 254;  Polito v. Polito, 168 A.D.2d 440, 562 N.Y.S.2d 561).

The defendant's remaining contentions are without merit.

MEMORANDUM BY THE COURT.

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