SUPREME COURT: COUNTY OF CHAUTAUQUA
vs Index No. 11453
BURGETT & ROBBINS
(Dalton J. Burgett, Esq.
of Counsel) for Plaintiff
LODESTRO, CASS, VANSTROM, & EDWARDS
(Stephen W. Cass, Esq.
of Counsel) for Defendant
DECISION AND ORDER
March 1, 1996
This matter comes before the Court on a motion by
defendant-husband for child support and a cross-motion by
plaintiff-wife to deny husband's motion, increase her child
support and grant maintenance.
Defendant's motion is denied. Plaintiff's motion is
granted in part and denied in part.
On September 27, 1995, a temporary order was entered
in which husband was ordered to pay support per the CSSA at
$211.00 per week for three children. Since that time one
of the sons has indicated his desire to live with his
father and the other son with his mother. The daughter has
always indicated her intention to live with her mother.
However as part of the matrimonial action, the husband
bought out the wife's interest in the marital residence.
The wife is currently in an apartment and investigating the
purchase of a new home. Daughter, Cheryl is currently
still at the marital residence along with her father
awaiting her mother's purchase of a home.
Husband earned approximately $39,774 in 1995. Wife
currently earns about $15,800. The husband claims he has
$2,163.37 in monthly expenses but provided no proof.
The husband, pursuant to a stipulation entered into by
the parties, agreed to pay wife her half equity in the home
and pay off the home equity loan and remortgage the house.
He delayed in doing this. He knew of Cheryl's intentions
and that the wife desired her name removed from the home
equity loan so that she would be able to obtain a mortgage
for herself on the new home she hoped to purchase. As of
the date of this motion, no proof had ever been furnished
that husband had in fact paid off the loan. The wife
claims husband's conduct is willful.
In addition, the husband did not pay the attorney fee
to plaintiff's attorney. Wife claims he has not paid child
support routinely, and it does appear that he has taken
deductions from child support for school tuition and
The amount of husband's income is disputed. Wife
claims he receives periodic profit-sharing payments,
overtime pay, some income from a used auto business and
rental income from a three family apartment building for
which she has received no accounting.
The Court finds that wife should pay no child support
for Cheryl. It is in the children's best interests to get
Mrs. Swartz settled financially quickly. If they were all
still living at home and she was trying to move out, she
would be eligible to receive child support to enable her to
do so. This is no different. Husband should pay support
to wife for two children. However, she has an obligation
to pursue a home purchase. She has been out of the home
since December 20, 1995. She should make arrangements to
sign a purchase offer by April 1st.
The husband shall pay to the wife child support in the
amount of $150.00 a week temporarily, effective as of
January 16, 1996, until trial and/or the issue of income
can be resolved. Wife owes support to husband for one son.
She is asking for maintenance. Both in 1994 and 1995
regardless of what disputed income figures used, husband
earned easily more than double the amount of wife. Her
expenses do not meet her income. She is clearly eligible
In lieu of maintenance, the wife shall not pay any
child support for son, Steven, so that it is a wash. The
husband is not in a good position currently to pay
maintenance, and the wife can not afford to pay support.
The husband shall refrain from making any deduction in
the future from child support and shall pay the wife the
$482.51 owed on arrears at the rate of $10 a week until
paid or sooner if desired.
The signing, filing, and mailing of a copy by the
Court of this Decision and Order to all Counsel shall not
constitute notice of entry required by CPLR 2220. Counsel
are not relieved from the applicable provisions of that
section respecting notice of entry.
THIS IS THE DECISION AND ORDER OF THIS COURT.
Dated: March 1, 1996
Mayville, New York
Supreme Court Justice
To all Counsel:
Please take notice that a DECISION and ORDER of
which the within is a copy, is duly granted in the above
entitled action on the day of , 1996, and
filed by the Court in the office of the Clerk of the County
of Chautauqua on the same date.