Cervasio v. Cervasio

113 A.D.2d 993, 493 N.Y.S.2d 667, 1985 N.Y. App. Div. LEXIS 52611

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 26, 1985
• Status: Published

Opinion

Casey, J. P. Appeal from an order of the Family Court of Rensselaer County (Reeves, J.), entered June 21, 1984, which, upon referral of the matter from Supreme Court, directed defendant to pay plaintiff $65 per week for maintenance and to pay plaintiff’s attorney $625 in counsel fees.

Plaintiff commenced an action for divorce in 1981 and, by order dated September 14, 1981, Special Term directed defendant to pay plaintiff $65 per week for temporary maintenance. Thereafter, in 1983, the parties entered into a stipulation whereby plaintiff was permitted to proceed to obtain the divorce relief requested in her complaint without opposition. All matters of support, counsel fees and division of property were referred by Supreme Court to Family Court. In March 1984, a hearing was held in Family Court, resulting in the order from which defendant now appeals.

It is apparent from Family Court’s decision that the matter was considered as a motion to reduce the amount of maintenance awarded in the prior order of Special Term, rather than a de novo determination of issues of maintenance, counsel fees and division of property referred to Family Court by Supreme Court. Defendant argues that Family Court’s misapprehension of the nature of the proceeding resulted in a determination based upon incorrect legal standards and inadequate factual findings. We agree and, therefore, reverse the order and remit the matter to Family Court.

Order reversed, on the law, with costs, and matter remitted to the Family Court of Rensselaer County for further proceedings not inconsistent herewith. Casey, J. P., Weiss, Yesawich, Jr., Levine and Harvey, JJ., concur.