Brokaw v. Brokaw

57 A.D.2d 519, 393 N.Y.S.2d 565, 1977 N.Y. App. Div. LEXIS 11422

Opinion

On these cross appeals, order of the Supreme Court, New York County, entered June 3, 1976, unanimously modified, on the law and the facts and in the exercise of discretion, without costs and without disbursements, to increase temporary alimony from $400 per month to $650 per month, effective as of the date of this order, and to reduce counsel fees from $5,000 to $1,500 without prejudice, and otherwise affirmed. While ordinarily appeals from orders of temporary alimony are to be discouraged (Singh v Singh, 41 AD2d 914), and the amount of permanent alimony and support is ultimately based on evidence rather than on the submitted papers for an award of temporary alimony (Levene v Levene, 41 AD2d 530), until the evidence is presented to the court at the trial, in this marriage of long duration it would seem that the award is deficient to the extent indicated. As to the counsel fee, the court anticipating a complex litigation, awarded $5,000 pendente lite, when the request was for only $1,500. Under the circumstances, only $1,500 should be awarded, without prejudice to a further showing at the appropriate time. Concur—Kupferman, J. P., Birns, Silverman and Capozzoli, JJ.