| Whelan v Whelan |
| 2009 NY Slip Op 00679 [59 AD3d 437] |
| February 3, 2009 |
| Appellate Division, Second Department |
| John P. Whelan, Respondent, v Eileen Whelan,Appellant. |
—[*1] Phillip J. Jusino, Lake Grove, N.Y., for respondent.
In an action for a divorce and ancillary relief, the defendant wife appeals, as limited by herbrief, from so much of an order of the Supreme Court, Suffolk County (Kent, J.), dated March 4,2008, as granted that branch of her motion which was for pendente lite child support only to theextent of awarding her the sum of $110 per week, and granted that branch of her motion whichwas for pendente lite maintenance only to the extent of awarding her the sum of $100 per week.
Ordered that the order is modified, on the facts and in the exercise of discretion, by deletingthe provision thereof granting that branch of the defendant's motion which was for pendente litechild support to the extent of awarding the defendant the sum of $110 per week and substitutingtherefor a provision granting that branch of the motion to the extent of awarding pendente litechild support in the sum of $400 per week; as so modified, the order is affirmed insofar asappealed from, with costs to the defendant.
The plaintiff husband and the defendant wife were married in 1987, and have four children.The husband is a retired New York City Police Officer who receives a gross pension ofapproximately $62,000 per year (approximately $50,000 from the regular pension and $12,000from a supplemental variable annuity). In 2006, the year before this action was commenced, thehusband earned approximately $43,000 working for a security firm, so that the family had a totalincome of $105,000, all earned by the husband.
In August 2007, after the husband moved out of the marital home, he commenced this actionby service of a summons with notice. Thereafter, the wife moved for pendente lite relief,seeking, inter alia, [*2]maintenance, child support, exclusive useand occupancy of the marital residence, and payment of all of the carrying charges on the maritalresidence. The husband subsequently agreed that she should have exclusive use and occupancyof the marital residence. The court directed him to pay the mortgage and home equity loan, thetaxes and some of the carrying charges and various other expenses totaling $1,400 per month. Italso directed the husband to pay the wife pendente lite maintenance of $100 a week andpendente lite child support of $110 a week.
"Pendente lite awards 'should be an accommodation between the reasonable needs of themoving spouse and the financial ability of the other spouse . . . with due regard forthe preseparation standard of living.' A speedy trial is ordinarily the proper remedy to rectify aperceived inequity in a pendente lite award, though 'the rule is not ironclad when the award isdeficient.' In such a case, this court may substitute a discretionary determination for that of thetrial court" (Wald v Wald, 44 AD3d848, 849-850 [2007] [citations omitted]). This is such a case.
We agree with the wife that the amount awarded for child support is insufficient to enableher to pay her bills. She has shown that it is impossible to pay her bills and properly provide forthe children on the amount provided by the court. Even using the amount the husband sets forthin his net worth statement as the amount required for food for a single person, and extrapolatingthat for four children, the amount of support the court ordered is significantly less than the totalcost of food for the four children.
Furthermore, we find it proper to impute to the husband his earnings from the previous yearin calculating child support. While it may be true that this year his earnings have decreased, hehas failed to show why he could not find either additional work, or other work, or a differentemployer, and have the same income he previously earned.
Finally, the wife sufficiently stated a reason for not working at this particular time. Sheshowed that she has been attempting to become self-sufficient, and that this attempt startedduring the course of the marriage. Therefore, for the year 2008, the wife showed a sufficientbasis for not working and instead continuing to complete her course of education.
Accordingly, the amount awarded for pendente lite child support was clearly insufficient andshould be increased to $400 per week.
The defendant's remaining contention is without merit. Rivera, J.P., Spolzino, Florio andLeventhal, JJ., concur.