Chavez v. Chavez

53 A.D.2d 593, 385 N.Y.S.2d 289, 1976 N.Y. App. Div. LEXIS 13247

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 29, 1976
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County, entered November 20, 1975, insofar as it awarded a divorce to the plaintiff wife and dismissed the counterclaim for a divorce of the defendant husband, and vested custody of the infant child of the marriage in the mother, and directed the payment of alimony and support in the sum of $125 per week together with a counsel fee of $750, unanimously reversed, on the law and the facts, and the matter remanded for a new trial on the complaint of the wife and on the counterclaim for divorce and with respect to custody and alimony and support, and otherwise affirmed, without costs and without disbursements. The proof on trial was insufficient to support the allegations of the complaint as to cruel and inhuman treatment. (Hessen v Hessen, 33 NY2d 406.) The counterclaim is entitled to the same consideration as the complaint. (Loving v Loving, 53 AD2d 573.) It may very well be shown that dual divorce or no divorce would be justified. Further, custody was automatically awarded to the mother, and under sections 70 and 240 of the Domestic Relations Law, the issue should be determined in the court’s discretion as justice requires with the best interests of the child being the paramount consideration. (Salk v Salk, 53 AD2d 558.) While the alimony and support awarded is fair and reasonable, any change upon retrial in the determination could affect the amount, and therefore, we reverse also as to the alimony and support. Pending a new trial and the disposition, the alimony and support provided for should be continued as temporary alimony and support. Concur—Kupferman, J. P., Silverman, Capozzoli, Lane and Nunez, JJ.