Getson v. Getson ( 1982 )

— Order, Supreme Court, New York County (Shainswit, J.), entered April 23, 1982, denying defendant’s cross motion “for leave to renew opposition” to plaintiff’s prior motion for temporary maintenance which resulted in an award of $150 weekly temporary maintenance, and order Supreme Court, New York County (Gabel, J.), entered June 29, 1982, directing entry of a money judgment in plaintiff’s favor in the sum of $5,550 for arrears, and directing defendant’s employer to deduct $150 weekly for temporary maintenance and the additional sum of $250 weekly until arrears are paid, both affirmed, without costs or disbursements. In this matrimonial action the original order awarding plaintiff wife temporary maintenance was entered October 29, 1981. Defendant, who has not made a single payment pursuant to that order, did not appeal, nor did he move for renewal until after his wife sought relief to enforce the award in April of 1982. The couple was childless, and the wife had been employed full time in comfortable positions. However, in the year before she moved for temporary maintenance she had either been working in a business venture that failed and from which she drew no salary, or as an office temporary in secretarial positions. The temporary maintenance awarded, $150 per week, or $7,800 per year, clearly contemplated the wife obtaining employment to cover the difference between the award and her monthly living expenses. Indeed, the court characterized the award as “modest” and referred to the wife’s apparent “present exigent circumstances, and her husband’s apparent ability to pay the sum awarded without any undue hardship.” Thus, it is of little or no significance that the wife obtained employment almost a month after she executed an affidavit stating that she was unemployed, and three days before the motion for temporary maintenance was finally submitted. As for any temporary employment in early 1981, the husband was not only aware of it, but saw fit to make no mention of it in opposing the motion for temporary maintenance. Thus, we are unable to find an abuse of discretion in Special Term’s refusal to grant renewal. (See Matter of Hooker v Town Bd. of Town of Guilderland, 60 AD2d 684.) We also find the timing of the husband’s renewal application to be significant. As already noted, the husband sought renewal only in response to the wife’s motion for enforcement. Courts have a right to take a dim view as to the bona fides of claims raised in such fashion. In this connection we note that the husband, with a substantial income, failed to pay temporary maintenance, as ordered, even before he discovered that the wife was working. We also note that .reference to the wife’s self-help has no place in this appeal. The wife satisfactorily explained her actions on the original motion and, as noted, the husband failed to appeal from the order entered thereon. Finally, we agree with our dissenting brother’s observation that appeals from pendente lite awards should not be encouraged. The best way for the husband to avoid the prolonged payment of temporary maintenance is to ready himself for trial as expeditiously as possible. Concur — Kupferman, J. P., Sullivan, Markewich and Lynch, JJ.