Brown v. Brown

Appellate Division of the Supreme Court of New York

Brown v. Brown

34 A.D.2d 907, 311 N.Y.S.2d 467, 1970 N.Y. App. Div. LEXIS 4570

Appellate Division of the Supreme Court of the State of New York·Decided June 9, 1970·Published·Cited by 4 cases

Opinion

Judgment unanimously modified, on the law and the facts to limit the retroactivity of the award of $325 weekly insofar as it exceeds the temporary weekly alimony of $250, so that the same shall commence and be paid retroactively from May 7, 1968 rather than from February 15, 1966 when temporary alimony commenced, and judgment otherwise affirmed, without costs and without disbursements. Although it is within the power of the trial court to provide that permanent alimony and child support payments shall be paid from the commencement of an action for divorce or separation (Forrest v. Forrest, 25 1ST. Y. 501; Burr v. Burr, 10 Paige ch. 20; Lowe v. Lowe, 28 A D 2d 212, affd. 21 N Y 2d 965), we conclude that, in the circumstances of this case, it was an improvident exercise of discretion for the trial court to provide for retroactivity of the award from a date prior to the date of entry of the interlocutory decree of divorce. Concur — Stevens, P. J., Eager, McGivern, Markewich and Nunez, JJ.

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Judgment unanimously modified, on the law and the facts to limit the retroactivity of the award of $325 weekly insofar as it exceeds the temporary weekly alimony of $250, so that the same shall commence and be paid retroactively from May 7, 1968 rather than from February 15, 1966 when temporary alimony commenced, and judgment otherwise affirmed, without costs and without disbursements. Although it is within the power of the trial court to provide that permanent alimony and child support payments shall be paid from the commencement of an action for divorce or separation (Forrest v. Forrest, 25 1ST. Y. 501; Burr v. Burr, 10 Paige ch. 20; Lowe v. Lowe, 28 A D 2d 212, affd. 21 N Y 2d 965), we conclude that, in the circumstances of this case, it was an improvident exercise of discretion for the trial court to provide for retroactivity of the award from a date prior to the date of entry of the interlocutory decree of divorce. Concur — Stevens, P. J., Eager, McGivern, Markewich and Nunez, JJ.

Brown v. Brown, 34 A.D.2d 907, 311 N.Y.S.2d 467, 1970 N.Y. App. Div. LEXIS 4570 (N.Y. Ct. App. 1970).

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Opinion

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