MERLIS v. MERLIS

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

Barbara MERLIS, Respondent, v. Charles MERLIS, Appellant.

Decided: September 21, 1998

Before ROSENBLATT, J.P., O'BRIEN, RITTER and KRAUSMAN, JJ. Jeanne C. Breiter, Hempstead, N.Y., for appellant. Mary Ann Aiello, Garden City, N.Y. (Sharon Daniels on the brief), for respondent.

In an action for a divorce and ancillary relief, the defendant husband appeals, as limited by his brief, from so much of (1) an order of the Supreme Court, Nassau County (Schmidt, J.), dated May 19, 1997, as awarded the plaintiff wife temporary custody of two of the three children of the parties, temporary child support of $150 per week, and temporary exclusive occupancy of the marital residence, directed him to pay all of the children's unreimbursed medical expenses, and enjoined him from transferring any property, and (2) an order of the same court, dated October 3, 1997, as granted that branch of a motion of the plaintiff wife which was for leave to enter a judgment against him in the amount of $5,255 for arrears in child support and directed a hearing with respect to that branch of the plaintiff wife's motion which was to hold him in contempt of an earlier order of the same court, dated May 19, 1997, which, inter alia, directed that he pay child support.

ORDERED that the order dated May 19, 1997, is affirmed insofar as appealed from;  and it is further,

ORDERED that the appeal from so much of the order dated October 3, 1997, as directed a hearing is dismissed, as no appeal lies from an order directing a hearing to aid in the disposition of a motion;  and it is further,

ORDERED that the order dated October 3, 1997, is affirmed insofar as reviewed;  and it is further,

ORDERED that the respondent is awarded one bill of 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” (Beige v. Beige, 220 A.D.2d 636, 632 N.Y.S.2d 826;  see also, Verderame v. Verderame, 247 A.D.2d 609, 669 N.Y.S.2d 227).   The general rule is that a speedy trial is the proper remedy to rectify any perceived inequity in an order directing payment of temporary support (see, Verderame v. Verderame, supra;  Gianni v. Gianni, 172 A.D.2d 487, 568 N.Y.S.2d 113).   Pendente lite awards should be an accommodation between the reasonable needs of the moving spouse and the financial ability of the nonmoving spouse (see, Lloyd v. McGrath, 246 A.D.2d 630, 668 N.Y.S.2d 226;  Young v. Young, 245 A.D.2d 560, 667 N.Y.S.2d 58).   In determining the amount of support to be awarded, the trial court was free to find that the husband's actual income was greater than he had reported in documents submitted into court (see, Verderame v. Verderame, supra;  Kesten v. Kesten, 234 A.D.2d 427, 650 N.Y.S.2d 807;  Powers v. Powers, 171 A.D.2d 737, 567 N.Y.S.2d 293).   Since the husband failed to disclose information critical to the assessment of his net worth, he could not complain that the court erred in drawing inferences favorable to the wife with respect to the disputed financial issues involved (see, Richter v. Richter, 131 A.D.2d 453, 455, 515 N.Y.S.2d 876).

The court properly awarded pendente lite custody of two of the three children to the wife as being in the best interests of those children (see, Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260;  Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 95, 447 N.Y.S.2d 893, 432 N.E.2d 765;  Vecchiarelli v. Vecchiarelli, 238 A.D.2d 411, 656 N.Y.S.2d 337;  Muller v. Muller, 221 A.D.2d 635, 636, 634 N.Y.S.2d 190).

The court properly imposed upon the husband a pendente lite restraint on property transfers (see, Guttman v. Guttman, 129 A.D.2d 537, 539, 514 N.Y.S.2d 382;  Sacks v. Sacks, 181 A.D.2d 727, 728-729, 581 N.Y.S.2d 80).

The husband contends that the court's determination to grant the wife exclusive occupancy of the marital residence was not based upon evidence adduced at a hearing held on that issue.   However, as the record does not contain the minutes of the hearing, we cannot determine this issue.

The husband's remaining contentions are without merit.

MEMORANDUM BY THE COURT.

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