Hoffinger Stern & Ross, LLP -- Philip S. Ross Case File

240 A.D.2d 689

C
Byrne v. Byrne N.Y .A.D. 2 Dept., 1997.
Supreme Court, Appellate Division, Second
Department, New York.
Linda Marsanico BYRNE, Appellant,
v.
Luke BYRNE, Respondent.
June 30, 1997.

Wife sued for divorce and ancillary relief, and the Supreme Court, Kings County, Rigler, J., denied wife's application for temporary child support. Wife appealed. The Supreme Court, Appellate Division, held that modification of divorce court's order on temporary child support was not warranted, given wife's failure to show that children's needs were not being met.

Affirmed.

Modification of divorce court's order on temporary child support was not warranted, where wife failed to make any showing that children's needs were not being met, and court had ordered husband to pay mortgage, taxes, insurance, utilities, and other carrying charges for marital residence.

Twohy, Kelleher & Gallagher, LLP, Brooklyn, ( Robert Allan Muir, Jr., of counsel), for appellant. Philip S. Ross, New York City, for respondent.

Before ROSENBLATT, J.P., and MILLER, O'BRIEN and RITTER, JJ.
MEMORANDUM BY THE COURT.
*689 In an action for a divorce and ancillary relief, the plaintiff wife appeals, as limited by her notice of appeal and brief, from so much of an order of the Supreme Court, Kings County (Rigler, J.), dated April 19, 1996, as denied her application for temporary child support.

ORDERED that the order is affirmed insofar as appealed from, with costs.

[1][2] The Supreme Court, Kings County, should have set forth the factors it considered in reaching its determination with respect *690 to temporary child support. Remittitur is not necessary, however, as the Appellate Division's authority in this area is as broad as that of the Supreme Court ( see, Zummo v. Zummo, 237 A.D.2d 436, 655 N.Y.S.2d 85).

[3] It is well established that an appellate court should rarely modie a pendente lite award and then only under exigent circumstances, such as where a party is unable to meet his or her financial obligations or justice otherwise requires (see, Beige v. Beige, 220 A.D.2d 636, 632 N.Y.S.2d 826). The general rule is that the proper remedy for any perceived inequity in a pendente lite award is a speedy trial (see, Beige v. Beige, supra). Under the circumstances of this case, including the facts that the wife failed to make any showing that the children's needs were not being met (see, Ragusa v. Capetoia, 199 A.D.2d 31 1, 604 N.Y.S.2d 2631, and that the court ordered the defendant husband to pay the mortgage, taxes, insurance, utilities, and other carrying charges for the marital residence, we conclude that modification of the court's pendente lite order is not warranted (see, OfConnor v. OrConnor, 207 A.D.2d 334, 616 N.Y.S.2d 21 1).

N.Y.A.D. 2 Dept.,l997.
Byrne v. Byrne
240 A.D.2d 689.660 N.Y.S.2d 35

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