Buchek v. Buchek

78 A.D.2d 948, 433 N.Y.S.2d 249, 1980 N.Y. App. Div. LEXIS 13722

Opinion

Appeal from an order of the Family Court of Broome County, entered June 26, 1980, which awarded custody of a child and exclusive possession of the marital residence to petitioner and directed respondent to pay child support and alimony. Petitioner and respondent were divorced by a judgment entered March 29, 1979. It was provided in the divorce decree that matters of custody and support of the children be referred to Family Court. The decree contained no provision for alimony payments to petitioner. In an order entered June 26, 1980, the Family Court ordered, inter alia, that respondent make alimony payments of $50 per week. On this appeal, respondent’s sole contention is that the Family Court was without jurisdiction to grant alimony to petitioner. In view of the fact that the Supreme Court has made no referral of alimony applications to the Family Court in the present case, the Family Court was precluded from making directions regarding alimony unless petitioner was likely to become in need of public assistance (Family Ct Act, §464, subd [b]; Matter of Sergi v Sergi, 58 AD2d 692). Petitioner made no claim of being likely to become in need of public assistance and, consequently, the award of alimony was improper (see Matter of Sergi v Sergi, supra). Accordingly, the order must be modified so as to reverse so much thereof as granted alimony to petitioner. Order modified, on the law, by reversing so much thereof as awarded petitioner alimony, and, as so modified, affirmed, without prejudice and without costs. Mahoney, P. J., Sweeney, Kane, Main and Mikoll, JJ., concur.