Opinion
February 14, 1989
Appeal from the Supreme Court, Nassau County (Diamond, J.).
Ordered that the order is modified by deleting the provision thereof which directed the husband to open a bank account for the family-held corporation which requires the signatures of both parties on all checks drawn on the account; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
As a general rule, exclusive occupancy of the marital residence should not be awarded to a party prior to trial and without a hearing unless there is sufficient evidence that such an award is necessary to protect the safety of persons and property (see, e.g., Waldeck v Waldeck, 138 A.D.2d 373; Ross v Ross, 137 A.D.2d 800; Harkavy v Harkavy, 93 A.D.2d 879). Here the Supreme Court reasonably concluded that a temporary award of exclusive occupancy was necessary to protect the safety of members of this family.
Each party accused the other of physical assaults, which included allegations that the wife's hand was broken and that the husband was struck with a knife. In addition, the parties' daughters, ages 15 and 17, submitted affidavits in support of their mother's allegations and stated that they were afraid to live with their father. Since the husband did not seek custody of the children, the court properly granted the wife temporary exclusive occupancy of the marital residence. In light of the allegations in the wife's affidavit and the corroboration provided by the daughters, the court did not err in granting the wife a temporary order of protection without a hearing (see, e.g., Peters v Peters, 100 A.D.2d 900).
The husband contends that he has insufficient funds to meet his maintenance and child support obligations. The appropriate remedy to resolve any inequity in the court's pendente lite award is a speedy trial, particularly here, where the affidavits were conflicting as to the amount of funds available to the husband from the family-owned business (see, e.g., Harrilal v Harrilal, 128 A.D.2d 502; Berger v Berger, 125 A.D.2d 285). Considering evidence of the family's life-style provided by the parties' net worth statements, the Supreme Court reasonably rejected the husband's contention that his sole source of income was from his Social Security and disability pension benefits.
In view of the acrimony between the parties and the absence of proof that the husband had dissipated the assets of the family-owned corporation, it was an improvident exercise of the Supreme Court's discretion to direct the husband to open a new corporate bank account which required both parties' signatures on all checks. The wife failed to establish that her interest in the corporation will not be sufficiently protected by other provisions in the court's order which restrained the husband from disposing of or otherwise encumbering any corporate assets except in the ordinary course of business and which directed him to provide her with unrestricted access to the business premises and records.
We find no merit to the remaining contention raised by the husband. Mollen, P.J., Mangano, Brown and Sullivan, JJ., concur.