De Gasper v. De Gasper

31 A.D.2d 886, 298 N.Y.S.2d 297, 1969 N.Y. App. Div. LEXIS 4575

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 20, 1969
• Status: Published

Opinion

—■ Order unanimously .affirmed, without costs. Memorandum: Appeals from orders granting temporary alimony are not favored, and it is suggested that generally in lieu thereof counsel should promptly proceed to trial (see Domestic Relations Law, § 249), We recognize that in the court’s discretion temporary alimony and support may be denied where the husband is adequately caring for the needs of his wife and children (see Scheideler v. Scheideler, 10 A D 2d 991; Baker v. Baker, 16 A D 2d 409; Domestic Relations Law, § 236). It should be noted that the amount of permanent alimony and support to be awarded, if any, is to be based upon the evidence and not upon the amount awarded as temporary alimony, which is determined upon the moving .papers (Schine v. Schine, 28 A D 2d 976; Sklan v. Sklan, 29 A D 2d 526; Brown v. Brown, 31 A D 2d 516). With respect to alimony, we think it generally inadvisable to direct payments óf the wife’s expenses of a designated character, which may permit her to increase the award by incurring larger expenses of that character, and we deem it preferable that periodic payments of a specified amount be fixed (Schine v. Schine, supra; Macris v. Macris, 29 A D 2d 528; and see Braun v. Braun, 29 A D 2d 929; Domestic Relations Law, § 236). In this case, where the husband is suing for divorce, we find no impropriety in the allowance of counsel fees to defendant (see Walsh v. Walsh, 22 A D 2d 937; Sierson v. Sierson, 269 App. Div. 899). (Appeal from order of Erie 'Special Term, awarding temporary .alimony and counsel fees.) Present-—-Del Vecchio, J. P., Marsh, Witmer, Gabrielli and Moule, JJ.