| Paul v Paul |
| 2009 NY Slip Op 08196 [67 AD3d 757] |
| November 10, 2009 |
| Appellate Division, Second Department |
| Diane Paul, Respondent, v Robert Paul,Appellant. |
—[*1] Harold, Salant, Strassfield & Spielberg, White Plains, N.Y. (Donna E. Abrams of counsel),for respondent.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief,from so much of an order of the Supreme Court, Westchester County (Jamieson, J.), entered June3, 2008, as denied those branches of his cross motion which were, inter alia, for a downwardmodification of his maintenance and child support obligations.
Ordered that the order is affirmed insofar as appealed from, with costs.
Pendente lite awards of child support and maintenance should reflect an accommodationbetween the reasonable needs of the moving spouse and the financial ability of the other spouse,with due regard for the parties' pre-separation standard of living (see Swickle v Swickle, 47 AD3d704 [2008]; Miller v Miller, 24AD3d 521 [2005]). Modifications of pendente lite child support and maintenance shouldrarely be made by an appellate court, and then only under exigent circumstances, such as when aparty is unable to meet his or her financial obligations, or when justice otherwise requires (see Brooks v Brooks, 30 AD3d363, 364 [2006]; Fruchter vFruchter, 29 AD3d 942, 944 [2006]; DeVerna v DeVerna, 4 AD3d 323, 324 [2004]). Consequently, anyperceived inequities in pendente lite child support and maintenance can best be remedied by aspeedy trial, at which the parties' financial circumstances can be fully explored (see Susskind v Susskind, 18 AD3d536, 537 [2005]; [*2]Najac v Najac, 12 AD3d 579 [2004]).
Applying these considerations, we conclude that the pendente lite awards of child supportand maintenance here were proper under the circumstances, and should not be disturbed onappeal. Since the Supreme Court did not apply the Child Support Standards Act (DomesticRelations Law § 240 [1-b]) in fixing pendente lite child support, the husband's contentionthat the Supreme Court erred in directing him to pay both pendente lite child support and thecarrying charges on the marital residence, on the ground that the imposition of these twoobligations upon him resulted in an award of a double shelter allowance to the wife, is withoutmerit (see Otto v Otto, 13 AD3d503 [2004]; see also Ayoub vAyoub, 63 AD3d 493, 497 [2009]). Additionally, he failed to demonstrate that thependente lite awards rendered him unable to meet his financial obligations. Moreover, the recordsupports an inference that his income is considerably higher than represented (see Piali vPiali, 247 AD2d 455, 456 [1998]).
Contrary to the husband's contentions, the Supreme Court properly imputed income to him inthe sum of $200,000, based upon his past income (see Matter of Apgar v Apgar, 37 AD3d 598, 599 [2007]; Bernstein v Bernstein, 18 AD3d683, 684 [2005]). Moreover, he failed to satisfy his burden of establishing that he haddiligently sought to obtain new employment commensurate with his qualifications andexperience (see Matter of Piernick vNazinitsky, 48 AD3d 690[2008]; Matter of Fragola v Alfaro, 45 AD3d 684, 685 [2007]).
The husband's remaining contentions are either without merit or improperly raised for thefirst time on appeal. Dillon, J.P., Miller, Angiolillo and Dickerson, JJ., concur.