—[*1]Mauro Goldberg & Lilling, LLP, Great Neck (Matthew W. Naparty of counsel), forappellant.

Leitner & Getz, LLP, New York (Jerome M. Leitner of counsel), for respondent.

Cohen Hennessey Bienstock & Rabin P.C., New York (Harriet Newman Cohen of counsel),Law Guardian.

Order, Supreme Court, New York County (Saralee Evans, J.), entered October 2, 2008,which, to the extent appealed from, granted plaintiff's motion for pendente lite relief in the formof monthly payments of $20,000 to maintain an apartment for plaintiff and the children, $7,000in temporary child support, and $2,500 in temporary maintenance, as well as the cost of thechildren's private school tuition, child care and nursery school expenses, after-school andextracurricular activities, books, supplies, camp and travel expenses, the children's medical,therapy, dental and pharmacological costs, and the family medical insurance premiums,modified, on the facts, defendant ordered to pay the actual monthly cost of the apartment inwhich plaintiff and the children presently reside in lieu of $20,000 per month to maintain anapartment, and otherwise affirmed, without costs.

Plaintiff wife and defendant husband were married in 1997. Together they had threechildren, who are 10, 7 and 3. The husband is the sole owner of a commercial bakery thatemploys approximately 125 people and generates annual revenues in excess of $22 million. Thewife has an undergraduate degree in architecture and owned a design business prior to themarriage. However, she did not work outside the home during the marriage and has no income ofher own. She claims that the husband kept her in the dark about the parties' finances and that forspending money she relied on weekly cash allowances that he gave her.

During the marriage, the family enjoyed what can only be described as an extravagantlifestyle. They resided in a six-story townhouse on East 70th Street in Manhattan, which theypurchased for $6 million and then gut-renovated. They owned a vacation home in the Hamptons,situated on three acres of land, that was designed by a renowned architect. All of the furnishingsand appliances in the homes were state of the art. For example, the mattress in the masterbedroom in the townhouse cost approximately $50,000 and the speakers in the "audio/visual"room there cost approximately $150,000. Defendant's car collection is valued in excess of $1million. The family's vacations were also extraordinary. They visited Paris each fall, and in thewinter skied the slopes of Aspen, Vail, Beaver Creek and Bachelor Gulch. When [*2]they vacationed in Tuscany in the summer of 2005, they rentedtheir own villa.

The parties also spared no expense when it came to their children. Each child's mattress costapproximately $6,500. When their oldest child wanted to learn how to play guitar, he received a$3,000 instrument. The children's annual birthday parties cost approximately $2,000 and theirprivate school tuition is $30,000 per year each.

Shortly after she commenced this divorce action, the wife moved by order to show cause forpendente lite relief, including custody of the children, monthly maintenance, and monthly childsupport. The wife also sought to have defendant pay all carrying charges on the townhouse,medical insurance premiums for her and the children and private school tuition. In support of hermotion the wife submitted her statement of net worth, in which she asserted that her monthlyexpenses were $52,658.80. These included, among other things, $7,166.66 for food, $4,583.33for clothing, $3,000 for babysitting, $7,270.82 for education, $9,813.66 for recreation and$2,054.33 for miscellaneous items.

The wife also claimed in the statement of net worth that her monthly housing cost was$15,000. This was the amount she anticipated she would have to spend to rent an apartment inManhattan. The need for her to rent was made necessary by the fact that, as of the time the wifemade the motion, the husband had entered into a contract to sell the townhouse. He had alsosigned an agreement to purchase a mansion in Scarsdale, New York. The wife claims that sheadamantly rejected the husband's proposal that they sell the townhouse and that she had no desireto move the children out of the city.

The husband cross-moved for temporary custody of the children and the appointment of alaw guardian for the children. In opposing the wife's motion, the husband asserted that theexpenses claimed by the wife in her statement of net worth were "grossly exaggerated." Forexample, he stated that the parties never spent the specific amounts claimed by the wife for foodand clothing. According to his own statement of net worth, those items cost $1,720 and $2,416,respectively. The husband further maintained that the wife was entitled only to maintenance inthe amount delineated in a prenuptial agreement between the parties.

The husband contended that the wife agreed to the concept of leaving the city. However, heconceded that he agreed to purchase the Scarsdale home unilaterally, after what he described asthe wife changing her mind and refusing to cooperate in the search for a suitable home inWestchester County. The husband claimed that his desire to move to Scarsdale was motivated bythe nearby presence of a particular private school well-suited to the special needs of one of thechildren, as well as the availability of good public schools for the other children. He also citedthe declining real estate market in Manhattan and the rising cost of the children's private schooltuition.

The husband claimed that the wife desires to remain in the city only to continue her ownsocial life and that there is no reason for him to pay for an apartment when she and the childrencan live in the Scarsdale house. Further, he claimed that since two of his children could attendthe Scarsdale public schools, it made no sense for him to also pay for private school tuition in thecity. Indeed, he stated, he could not afford to carry the Scarsdale house and pay for privateschool. In support of the motion the husband submitted the parties' joint income tax returns for2006, in which they stated adjusted gross income of $722,345.

After she replaced her original counsel, the wife's new attorneys brought an additional orderto show cause that sought the same pendente lite relief as the first one. In her supporting [*3]affidavit, the wife asserted that the monthly rental cost of theapartments she had seen ranged from $15,000 to $22,000.

The court granted the wife's motion to the extent of directing the husband to pay her $20,000per month to maintain an apartment in the city pending resolution of the action, as well as$40,000 for the initial rent payment and a security deposit. The husband was further ordered topay up to $40,000 to furnish the apartment unless the parties agreed that the wife could furnishthe apartment with items from the townhouse. In addition, the court directed the husband to paythe wife interim child support in the amount of $7,000 per month, maintenance in the amount of$2,500 per month, and an interim payment of attorneys' fees in the amount of $25,000. Finally,the court ordered the husband to pay the costs of the children's private school, child care, nurseryschool, after-school and extracurricular activities, books, supplies, camps, travel and health care,and the family's health insurance premiums. In granting the award, the court stated that: "Thistemporary award is reasonable in light of the children's prior standard of living and the greatdiscrepancy between the parents' financial positions. See Nayar v Nayar, 225 AD2d 370(1st Dept. 1996). In arriving at this calculation, the court has considered that rote application ofthe CSSA guidelines is not mandatory on a motion for temporary support. Rizzo v Rizzo,163 AD2d 15 (1st Dept 1990)."

A pendente lite award should only be modified "rarely" (Wittich v Wittich, 210AD2d 138, 140 [1994]) and the general rule is that an aggrieved party's remedy for perceivedinequities in a pendente lite award is a speedy trial (see Sumner v Sumner, 289 AD2d129 [2001]; Gad v Gad, 283 AD2d 200 [2001]). However, this rule, as the husbandnotes, may be set aside if exigent circumstances exist (id.).

While, in this case, the husband asserts that such exigent circumstances exist, he has failed tosubstantiate his claims. He argues that the court-mandated payments, combined with the cost ofhis own lifestyle, would exceed by $212,972 the gross income of $722,345 that he and the wifereported in their 2006 income tax return. However, he failed to establish his true income becausehe did not submit tax returns for 2007, nor did he offer any explanation for his failure. Further, itappears that in 2007 the husband had significantly more funds than he maintains he had in 2006.For example, he claimed in his net worth statement that in February 2007 he used his "separateproperty" to purchase a Lamborghini for over $200,000 in cash. This would have been highlyunlikely, if the husband had income in 2007 equivalent to what he claimed in 2006, as it wouldhave required that he devote more than one quarter of that income to a sports car. In any event,by purchasing the Lamborghini the husband confirmed his free-spending ways. This establishesthat the award is not "so onerous as to deprive [the husband] of income and assets necessary tomeet his own expenses." (Moshy v Moshy, 227 AD2d 182, 183 [1996].)

The husband further argues that the court impermissibly provided for a double housingallowance by ordering him to make both interim child support payments and separate paymentsfor rental of an apartment. He asserts that at the very least the court was required to specificallydelineate the components of the child support payment. The husband, however, misstates thelaw. In all of the cases cited by the husband in support of this point, the trial court had appliedthe Child Support Standards Act (Domestic Relations Law § 240 [1-b]) in fashioning thependente lite award (Kaplan v Kaplan, 192 AD2d 343 [1993]; James v James,169 AD2d 441[*4][1991]; Lenigan v Lenigan, 159 AD2d108 [1990]), or was directed to do so by the Appellate Division (Ryder v Ryder, 267AD2d 447 [1999]). Here, the court expressly and appropriately declined to apply the ChildSupport Standards Act. Thus, it was not required to deduct the amount awarded for carryingcharges before determining the appropriate amount of child support (see Otto v Otto, 13 AD3d 503[2004]; Fischman v Fischman, 209 AD2d 916, 917 [1994]).

In fashioning its award, the court properly considered the family's standard of living (Winter v Winter, 50 AD3d 431,432 [2008]; Lapkin v Lapkin, 208 AD2d 474 [1994]; Rizzo v Rizzo, 163 AD2d15, 16 [1990]). The husband cannot dispute that his children became accustomed to a lifestylethat is extremely expensive. The goal of child support is to continue the status quo pending thedivorce and to satisfy the "overwhelming need to maintain a sense of continuity in the children'slives" (Cron v Cron, 8 AD3d186, 187 [2004], lv dismissed 7 NY3d 864 [2006], lv denied 10 NY3d 703[2008]). In this case, the trial court's child support award is consistent with that purpose. Thesame is true for those items that the husband characterizes as "open-ended" and "ambiguous,"such as school supplies, summer camp and travel expenses (see Rogers v Rogers, 52 AD3d 354 [2008]).

The dissent loses sight of the goal of pendente lite support, which is to return the parties tothe preaction status quo as quickly as possible. To require the exacting inquiry that the dissentfavors would risk prolonging the process by which the parties can be returned to some sense ofnormalcy after the upheaval that often accompanies a separation. That this process be donespeedily is especially critical where, as here, there are young children. Moreover, the dissent'sapproach would add an unnecessary burden to the matrimonial courts, whose resources are betterspent shepherding the parties toward a final resolution.

The dissent's concern about the wife's financial responsibility is curious. This is especially soin light of the fact that the husband spent $200,000, more than one quarter of his alleged annualgross income for 2006, on a sports car. Moreover, there is no evidence that the husband objectedto what he now argues are "unreasonable" expenditures during the marriage, such as thepurchase of mattresses for the children that cost $6,500 each. Under such circumstances, there isno reason to impose a rebuttable presumption, as the dissent suggests, that the wife'sexpenditures above a specified amount are unreasonable. Of course, the wife should not interpretthe order as requiring anything other than prudence and reason in making expenditures on behalfof the children. Nevertheless, the burden is on the husband to challenge the reasonableness ofany expenditures that he feels are excessive.

Finally, the award should be adjusted downward to reflect the actual amount (at present,approximately $17,000) that plaintiff is paying in monthly rent. Concur—Mazzarelli,Sweeny, and DeGrasse, JJ.

Gonzalez, P.J., and McGuire, J., dissent in part in a memorandum by McGuire, J., asfollows: I agree that the order should be modified to reflect that the actual monthly cost of theapartment in which plaintiff and the three children of the marriage live is less than the monthlypayments of $20,000 that defendant is required to pay under the order to maintain such anapartment. In my view, however, we should modify the award in two other respects.

First, we should vacate that portion of the pendente lite award directing defendant to makemonthly payments of $7,000 in temporary child support over and above other child supportpayments. As defendant correctly argues, the pendente lite award separately requires him to payfor: (1) private school tuition, (2) child care and nursery school expenses, (3) after-school andextracurricular activities, (4) books and supplies, (5) camp, (6) travel expenses, (7) all medicalexpenses for the children and (8) the family medical insurance premiums. As the housing costsfor plaintiff and the children are otherwise provided for in the pendente lite award, the onlyexpenses left for the children, who are 3, 7 and 10 years old, are food, clothing, entertainment(even assuming, what is at least doubtful, that this category of expenses is not subsumed withinthe categories of after-school and extracurricular activities), allowances and gifts. Even if it isnot inconceivable that $84,000 ($7,000 times 12 months) a year is reasonably necessary to paythese specific categories of expenses, it is far from obvious that such a sum is reasonable.

It may be that because Supreme Court was determining the amount of temporary childsupport it was not required to apply the child support guidelines and identify the factors itconsidered in deviating from the guidelines (compare Fischman v Fischman, 209 AD2d916, 917 [3d Dept 1994], and George v George, 192 AD2d 693, 693 [2d Dept 1993],with Meyer v Meyer, 173 AD2d 1021, 1022-1023 [3d Dept 1991]). The parties cite nodecision of this Court squarely on point. I need not decide the issue, however, because SupremeCourt not only did not tie the award to the reasonable needs of the children, it provided nofactual explanation at all of how it arrived at the $7,000 monthly sum.

As the mandated monthly payments of $7,000 in child support clearly do not includehousing costs, it is not only entirely unclear but also puzzling (as is further discussed below) howSupreme Court arrived at this substantial sum for these specific categories of expenses. AlthoughSupreme Court expressly recognized that a temporary child support award is designed to meetthe reasonable needs of the children, it made no attempt to support the monthly award of $7,000for food, clothing, entertainment, allowances and gifts with any facts bearing on the amounts theparties previously had spent for these categories of expenses. Rather, Supreme Court simplyproclaimed that its entire temporary award was "reasonable in light of the children's priorstandard of living and the great discrepancy between the parents' financial positions." In myview, this reasoning proves too much and, at least where, as here, such a substantial award ismade for specific categories of expenses, Supreme Court erred by providing no fact-basedexplanation for the award. Moreover, the complete absence of any explanation of this substantialcomponent of the temporary child support award is troublesome for an additional reason. Afterall, as defendant correctly notes, a speedy trial is not an adequate remedy given that public policygenerally precludes a reduction in permanent child support payments on account of excessiveinterim child support payments (Coull vRottman, 35 AD3d 198, 200 [2006], appeal dismissed 8 NY3d 903 [2007]).

The fundamental problem with the monthly award of $7,000 for food, clothing,entertainment, allowances and gifts is that meaningful review of this aspect of the order is notpossible. In this regard, Matter of Cassano v Cassano (85 NY2d 649 [1995]) isinstructive. There, the issue was "whether the court must articulate a reason for its award of childsupport on parental income exceeding $80,000 when it chooses simply to apply the statutorypercentage" (id. at 654). Although the Court concluded that "an elaboration ofneeds-based reasons" was not required, it stated as follows:

"That conclusion does not,however, end our analysis. Given that the statute explicitly vests discretion in the court and thatthe exercise of discretion is subject to review for abuse, some record articulation of the reasonsfor the court's choice to apply the percentage is necessary to facilitate that review (see,CPLR 4213 [b]; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR4213:2, at 336 [meaningful review is futile if court does not state facts upon which its decisionrests]; see also, 4 Weinstein-Korn-Miller, NY Civ Prac ¶ 4213.07 [court mustprovide the ultimate facts which support its conclusions of law 'in order to enlighten the partiesand to make more effective the review of judgments on appeal'])" (id. at 655).

As it cannot defend the $7,000 monthly award on the facts, the majority upholds it with agenerality ("the court properly considered the family's standard of living") and by invoking asweeping precept (the "goal of pendente lite support . . . is to return the parties tothe preaction status quo as quickly as possible"). The generality could uphold an even greatermonthly award (of, for example, $10,000 or $15,000) and the precept also proves too much.Meaningful review of the $7,000 monthly award is not possible and the award for that reason isimproper and unfair to defendant (see generally Yunis v Yunis, 94 NY2d 787 [1999]).

The majority also defends its position with the assertion that I would require "exactinginquiry." Why the majority imputes this position to me is unexplained. But even if the majoritycould provide a basis for characterizing the scrutiny I would require as "exacting," SupremeCourt's failure to provide any factual support for its award would be no less stark. The need toavoid excessive scrutiny does not justify an inscrutable award. Contrary to the majority,requiring the articulation of at least some factual support for a pendente lite award does not "addan unnecessary burden to the matrimonial courts" (emphasis added). Rather, "[o]nly withsuch record articulation can appellate courts—especially intermediate appellate courtswith plenary fact, law and discretion power—exercise meaningful, consistent and fairreview of [temporary child support and maintenance] rulings" (Yunis at 789).

The majority thinks it relevant to note that "[e]ach child's mattress cost approximately$6,500." Unless the majority considers mattresses a recurring expense, however, it is unclearhow this fact supports the $7,000 monthly award. By relying on this apparent extravagance, themajority helps to make my point: the factual basis for its decision to uphold the award of such asubstantial sum over and above the other child support payments, like Supreme Court's decisionto make this award, is inscrutable.

For these reasons, I would vacate the temporary child support award, direct furtherproceedings and require Supreme Court to articulate the factual basis for this component of theinterim child support award regardless of whether it is revised after remand.

The order should be modified in another, related respect. As defendant argues, the awardsfor travel, after-school expenses, extracurricular activities, books, supplies and camp areopen-ended (i.e., not fixed by any objective criteria). Moreover, the awards for camp, travelexpenses, after-school expenses and extracurricular activities are ambiguous. For example, if, asappears to be the case, the term "travel expenses" includes vacations (and so the costs ofvacations are not included in the $7,000 monthly award), defendant could be required to pay forany number of extraordinarily expensive vacations. How after-school and extracurricularactivities are to be distinguished also is far from clear. I do not mean to suggest that we shoulddecide this appeal on the assumption that plaintiff would act unreasonably with respect to theseexpenses or that the order sensibly could be read to require boundless expenditures for travel,camp, after-school and extracurricular activities. But it is worthy of note that in her net worthstatement submitted by her prior counsel, plaintiff requested a monthly child support award of$50,000. I think it self-evident that this request for an annual child support award of $600,000 ispreposterous.

Under these circumstances, I would direct that the modified award set a monthly limit on theamount the husband is required to pay for travel, camp, after-school and extracurricular activitieswith any expenditures in excess of the specified amount to be approved in advance by the courtunless defendant states that he does not object to the particular expenditure. Exquisite precisioncannot be achieved when it comes to defining the scope of these expenses. Given that manydivorce actions are highly contentious, it is prudent to require generally that the order expresslystate that all the expenses must be reasonable. Doing so can do little if any real harm but canserve to deter unreasonable expenditures borne of bitterness.

Finally, I note that whether defendant is entitled to any relief on account of the payments hemade to maintain the apartment in excess of the monthly rent is not before us on this appeal.