Clarke v. Clarke

7 A.D.2d 831, 180 N.Y.S.2d 787, 1958 N.Y. App. Div. LEXIS 3818

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 17, 1958
• Status: Published

Opinion

Order reversed and matter remitted to the Special Term for further proceedings not inconsistent with the memorandum. Memorandum: Upon the application of the plaintiff, an award of alimony contained in a 1947 judgment was increased by Special Term from $15 to $22.50 a week. The plaintiff has appealed from the order claiming that the increase was insufficient. The matter was submitted solely upon affidavits which were inadequate to demonstrate the financial condition of /the respective parties. The Special Term Justice found the papers insufficient to permit an intelligent appraisal of the application but awarded the increase “ solely by reason of the very substantial increase in the cost of living ” (italics added). An increase in cost of living is only one factor involved in such a determination and, standing alone, cannot support the order appealed from. (Cf. Phillips v. Phillips, 1 A D 2d 393.) The matter must be remitted to Special Term so that a hearing may be had and all of the relevant and material issues determined. The plaintiff also appeals from that part of the order which denies counsel fees. Neither the notice of motion nor the affidavit of the plaintiff supporting such notice of motion includes a request for an order awarding counsel fees. Inasmuch as the matter is to be remitted, this latter question, if it is properly brought before Special Term, may be determined upon such remission. All concur. (Appeal from an order of Onondaga Special Term modifying a decree of separation by giving plaintiff a claimed inadequate increase in alimony and denying counsel fees to plaintiff’s attorney.) Present — McCurn, P. J., Williams, Bastow, Goldman and Halpern, JJ.