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Kristiansen v. Kristiansen

Appellate Division of the Supreme Court of New York, Second Department
Nov 14, 1988
144 A.D.2d 441 (N.Y. App. Div. 1988)

Opinion

November 14, 1988

Appeal from the Supreme Court, Suffolk County (Abrams, J.).


Ordered that so much of the appeal from the portion of the order dated January 9, 1987 which denied that branch of the plaintiff's motion which was to direct the husband to continue payment of a salary by Saxpo, Inc. is dismissed, without costs or disbursements, as that portion of the order was superseded by the order entered March 24, 1987, made upon reargument; and it is further,

Ordered that the order dated January 9, 1987 is modified, by (1) granting that branch of the wife's motion which sought exclusive occupancy of the marital residence pendente lite, and (2) deleting the provision thereof enjoining the wife from any harassing or abusive conduct toward the husband, or conduct of any offensive nature whatsoever; as so modified, the order is affirmed insofar as reviewed, without costs or disbursements; and it is further,

Ordered that the order entered March 24, 1987 and the order dated May 7, 1987 are affirmed insofar as appealed from, without costs or disbursements.

The court erred in denying the wife's request for exclusive occupancy of the marital residence pendente lite. Given the fact that the husband has voluntarily established an alternative residence for himself, the existence of an acrimonious relationship between the parties, and the potential turmoil which might result from the husband's return to the marital home, we conclude that the wife is entitled to exclusive occupancy of the marital residence for herself and the children during the pendency of this matrimonial action (see, Delli Venneri v. Delli Venneri, 120 A.D.2d 238; Wolfe v. Wolfe, 111 A.D.2d 809).

The court also erred when, on its own motion, it enjoined the wife from "any harassing or abusive conduct toward [the husband] or conduct of any offensive nature whatsoever" as there is nothing in the record to indicate that a temporary order of protection is warranted (see, Peters v. Peters, 100 A.D.2d 900).

However, we perceive no reason to substitute our discretion for that of the trial court with respect to the awards of temporary maintenance and child support. We find that the court arrived at an accommodation between the "reasonable needs" of the wife and the husband's financial ability to provide for those needs (see, Goodson v. Goodson, 135 A.D.2d 604; Stern v. Stern, 106 A.D.2d 631, 632). The proper remedy for the parties' claims of inequities with regard to the awards for maintenance and child support is to seek an expeditious trial (see, Goodson v. Goodson, supra; Purdy v. Purdy, 117 A.D.2d 659, 661).

We also see no reason to disturb the court's sound exercise of discretion in limiting the award of interim counsel fees to $3,500, particularly in view of the fact that the wife was granted leave to apply for a further award upon the trial (see, Ahern v. Ahern, 94 A.D.2d 53).

The appropriate remedy with respect to the wife's remaining contentions is an early trial (see, Sayer v. Sayer, 130 A.D.2d 407, 409; Peters v. Peters, supra.) Mangano, J.P., Brown, Sullivan and Harwood, JJ., concur.


Summaries of

Kristiansen v. Kristiansen

Appellate Division of the Supreme Court of New York, Second Department
Nov 14, 1988
144 A.D.2d 441 (N.Y. App. Div. 1988)
Case details for

Kristiansen v. Kristiansen

Case Details

Full title:DIANE M. KRISTIANSEN, Appellant-Respondent, v. ERLING C. KRISTIANSEN…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 14, 1988

Citations

144 A.D.2d 441 (N.Y. App. Div. 1988)

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