| Goncalves v Goncalves |
| 2013 NY Slip Op 02539 [105 AD3d 901] |
| April 17, 2013 |
| Appellate Division, Second Department |
| Patricia Goncalves, Respondent, v John Goncalves,Appellant. |
—[*1] Gassman Baiamonte Betts, P.C., Garden City, N.Y. (Rosalia Baiamonte of counsel),for respondent. Tomasina Mastroianni, Westbury, N.Y., attorney for the children.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Nassau County (Palmieri, J.),dated May 10, 2012, as, without a hearing, granted the plaintiff's motion to modify thedefendant's visitation schedule with the children and for certain pendente lite relief.
Ordered that the order is affirmed insofar as appealed from, with costs.
Generally, visitation should be determined after a full evidentiary hearing todetermine the best interests of the child (see Matter of Burgess v Burgess, 99 AD3d 797, 798[2012]), but a hearing may not be necessary when a court already has adequate relevantinformation permitting it to make that determination (see Matter of Cardona v Vantassel, 96 AD3d 1052, 1053[2012]; Rosenberg vRosenberg, 60 AD3d 658, 658 [2009]; cf. Matter of Burgess v Burgess,99 AD3d at 798). Here, the Supreme Court possessed adequate relevant information tomake its determination, in which it adopted the temporary visitation schedule proposedby the attorney for the children, without holding a hearing (see Rosenberg vRosenberg, 60 AD3d at 658).
Furthermore, Domestic Relations Law § 236 (B) (5-a) sets forth thesubstantive and procedural requirements for an award of temporary maintenance,addressing both the amount and the duration of the temporary award (see Woodford v Woodford,100 AD3d 875, 876-877 [2012]; Khaira v Khaira, 93 AD3d 194, 197-198 [2012]). First, thesubdivision contains a formula the court must use to determine a "[g]uideline amount oftemporary maintenance" (Domestic Relations Law § 236 [B] [5-a] [b] [6]; [c]).When the income of the payor spouse does not exceed the "[i]ncome cap" (DomesticRelations Law § 236 [B] [5-a] [b] [5]), the initial calculation of the amount isstraightforward (see Domestic Relations Law § 236 [B] [5-a] [c] [1]).When the income of the "payor spouse" exceeds the income cap, an additional step isnecessary in this calculation of the guideline amount of temporary maintenance.Specifically, in determining whether and to what extent to apply the statutory formula tothe payor spouse's income in excess of the income cap, the court must consider 18specific enumerated factors, as well as "any other factor which the court shall expresslyfind to be just and proper" (Domestic Relations Law § 236 [B] [5-a] [c] [2] [a][xix]; Khaira v Khaira, 93 AD3d at 197-198). The court must explain itsreasoning in writing (see Domestic Relations Law § 236 [B] [5-[*2]a] [c] [2] [b]). Once it has determined the guideline amountof temporary maintenance, the court must consider the length of the marriage todetermine the "guideline duration of temporary maintenance" (see DomesticRelations Law § 236 [B] [5-a] [b] [7]; [d]). The guideline amount of temporarymaintenance and guideline duration of temporary maintenance together establish a"presumptive award" (Domestic Relations Law § 236 [B] [5-a] [b] [6]).
The court may deviate from the presumptive award if that presumptive award is"unjust or inappropriate" (Domestic Relations Law § 236 [B] [5-a] [e] [2]). Indetermining whether to deviate, the court must consider a broad range of factors almostidentical to those it must consider in determining whether and to what extent it will applythe statutory formula to the payor spouse's income exceeding the income cap(compare Domestic Relations Law § 236 [B] [5-a] [c] [2] [a] [i]-[xix]with Domestic Relations Law § 236 [B] [5-a] [e] [1] [a]-[q]). Again, thecourt must explain the reasons for its decision in writing (see Domestic RelationsLaw § 236 [B] [5-a] [e] [2]).
Here, the Supreme Court performed the required calculations, but it did not proceedsequentially through the statutory procedure. Instead, upon its consideration of all therelevant statutory factors, which it explained at length, the court awarded temporarymaintenance to the wife that was significantly in excess of the amount that would havebeen yielded solely by application of the statutory formula. Although it would have beenbetter for the court to proceed sequentially in accordance with the statutory procedure(see e.g. H.K. v J.K., 32 Misc 3d 1226[A], 2011 NY Slip Op 51429[U] [2011]),the court's award of temporary maintenance was "appropriately supported and explained"(Khaira v Khaira, 93 AD3d194, 201 [2012]), and we decline to disturb it (cf. Woodford v Woodford, 100 AD3d 875, 877 [2012]).
Finally, in light of the significant disparity in the income of the parties, the award ofan interim attorney's fee to the plaintiff in the sum of $75,000 was appropriate (see Prichep v Prichep, 52AD3d 61, 65 [2008]). Balkin, J.P., Leventhal, Roman and Hinds-Radix, JJ., concur.