STATE OF NEW YORK

SUPREME COURT: COUNTY OF CHAUTAUQUA

__________________________________________________

APRIL SWARTZ,

Plaintiff,

vs Index No. 11453

DAVID SWARTZ,

Defendant.

__________________________________________________

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

GERACE, J.

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

utilities.

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

for maintenance.

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

____________________________

JOSEPH GERACE

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.