Alpert v. Alpert

Appellate Division of the Supreme Court of New York

Alpert v. Alpert

20 A.D.2d 560, 245 N.Y.S.2d 902, 1963 N.Y. App. Div. LEXIS 2619

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 23, 1963

StatusPublished

Cited by3 cases

This text of 20 A.D.2d 560 (Alpert v. Alpert) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Alpert v. Alpert, 20 A.D.2d 560, 245 N.Y.S.2d 902, 1963 N.Y. App. Div. LEXIS 2619 (N.Y. Ct. App. 1963).

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Opinion

In an action by a husband for a judicial separation, in which the wife asserted a counterclaim for divorce, and in which judgment was entered on her counterclaim, granting her a divorce and awarding to her alimony of $30 per week, the husband appeals, as limited by his brief: from so much of an order of the Supreme Court, Queens County, dated June 18, 1963, as granted the wife’s motion by: (a) modifying said judgment so as to increase such alimony to $120 per week; (b) directing that such increase be paid as of May 27, 1963, the return date of the motion; and (c) awarding to her a counsel fee of $1,000 upon the motion. The husband also brings up for review, pursuant to statute (CPLR 5517, subd. [b]), so much of an order of said court, made August 2, 1963 upon reargument, as adhered to the foregoing disposition. Appeal from order of June 18, 1963 dismissed; that order was superseded by the order of August 2, 1963 made upon reargument. Order of August 2, 1963, insofar as appealed from, reversed, without costs; and the wife’s motion, insofar as she seeks to modify the judgment by increasing the alimony and insofar as she seeks a counsel fee, is remitted to the Special Term: (1) for the purpose of holding a plenary hearing as to: (a) the income and assets of the respective parties, both current and as of the time of the trial; (b) their respective needs and standards of living, then and now; (e) the changes, if any, in their circumstances since the date of the trial; and (d) all other facts relevant to the issue whether any increase in the alimony is warranted, and if so, in what amount; and (2) for the purpose of making a determination de novo, on the basis of all the proof adduced, of the wife’s motion insofar as she seeks an increase in the alimony and a counsel fee. In our opinion, the conflicting affidavits submitted by the respective parties do not contain sufficient facts to support a proper determination on the merits of the wife’s motion either with respect'to an increase in alimony or with respect to a counsel fee. Hence, a hearing must be held for the purpose of developing all the relevant facts indicated above. Beldock, P. J., Uglietta, Kleinfeld, Brennan and Hill, JJ., concur.

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In an action by a husband for a judicial separation, in which the wife asserted a counterclaim for divorce, and in which judgment was entered on her counterclaim, granting her a divorce and awarding to her alimony of $30 per week, the husband appeals, as limited by his brief: from so much of an order of the Supreme Court, Queens County, dated June 18, 1963, as granted the wife’s motion by: (a) modifying said judgment so as to increase such alimony to $120 per week; (b) directing that such increase be paid as of May 27, 1963, the return date of the motion; and (c) awarding to her a counsel fee of $1,000 upon the motion. The husband also brings up for review, pursuant to statute (CPLR 5517, subd. [b]), so much of an order of said court, made August 2, 1963 upon reargument, as adhered to the foregoing disposition. Appeal from order of June 18, 1963 dismissed; that order was superseded by the order of August 2, 1963 made upon reargument. Order of August 2, 1963, insofar as appealed from, reversed, without costs; and the wife’s motion, insofar as she seeks to modify the judgment by increasing the alimony and insofar as she seeks a counsel fee, is remitted to the Special Term: (1) for the purpose of holding a plenary hearing as to: (a) the income and assets of the respective parties, both current and as of the time of the trial; (b) their respective needs and standards of living, then and now; (e) the changes, if any, in their circumstances since the date of the trial; and (d) all other facts relevant to the issue whether any increase in the alimony is warranted, and if so, in what amount; and (2) for the purpose of making a determination de novo, on the basis of all the proof adduced, of the wife’s motion insofar as she seeks an increase in the alimony and a counsel fee. In our opinion, the conflicting affidavits submitted by the respective parties do not contain sufficient facts to support a proper determination on the merits of the wife’s motion either with respect'to an increase in alimony or with respect to a counsel fee. Hence, a hearing must be held for the purpose of developing all the relevant facts indicated above. Beldock, P. J., Uglietta, Kleinfeld, Brennan and Hill, JJ., concur.

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Bluebook (online)

20 A.D.2d 560, 245 N.Y.S.2d 902, 1963 N.Y. App. Div. LEXIS 2619, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alpert-v-alpert-nyappdiv-1963.

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