Duboys v. Duboys

Appellate Division of the Supreme Court of New York

Duboys v. Duboys

32 A.D.2d 538, 299 N.Y.S.2d 646, 1969 N.Y. App. Div. LEXIS 4237

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 14, 1969

StatusPublished

Cited by1 cases

This text of 32 A.D.2d 538 (Duboys v. Duboys) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Duboys v. Duboys, 32 A.D.2d 538, 299 N.Y.S.2d 646, 1969 N.Y. App. Div. LEXIS 4237 (N.Y. Ct. App. 1969).

Pincite

Opinion

In an action for separation, the defendant husband appeals from an order of the Supreme Court, Nassau .County, dated August 9, 1968 which granted the plaintiff wife’s motion, inter ajda, for temporary alimony and for a counsel fee. Order reversed, on the law .and the facts, without costs, and motion denied, without prejudice to renewal should defendant, pending trial, cease to support and maintain plaintiff and their children as heretofore. Since it appears that defendant 'has continued to support and maintain plaintiff and their children in the same style and manner as he did before this action was instituted and that plaintiff has ample means of her own, there is no basis for a pendente lite award of alimony and counsel fees, for such allowances are based on a showing of necessity (Swinson v. Swinson, 29 A D 2d 693; Friedman v. Friedman, 5 A D 2d 864; cf. Glazer v. Glazer, 12 A D 2d 936). Nor, in our opinion, does the record warrant exclusion of defendant from his own home (cf. Epstein v. Epstein, 29 A D 2d 545). The parties’ 20-year-old son boards at college and their daughter is .a high school senior. In the circumstances, and in view of the foregoing, we deem an award of custody to be inappropriate (see, also, Le Henaff v. Le Henaff, 20 A D 2d 569). The action should proceed to trial promptly. If warranted by .the proof, the trial court may make an appropriate allowance nwna pro tune as of the return day of the motion presently under review (Light v. Light, 29 A D 2d 540). The decision on this appeal is without prejudice to any such determination. Christ, Acting P. J., Brennan, Rabin, Hopkins and Kleinfeld, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

In an action for separation, the defendant husband appeals from an order of the Supreme Court, Nassau .County, dated August 9, 1968 which granted the plaintiff wife’s motion, inter ajda, for temporary alimony and for a counsel fee. Order reversed, on the law .and the facts, without costs, and motion denied, without prejudice to renewal should defendant, pending trial, cease to support and maintain plaintiff and their children as heretofore. Since it appears that defendant 'has continued to support and maintain plaintiff and their children in the same style and manner as he did before this action was instituted and that plaintiff has ample means of her own, there is no basis for a pendente lite award of alimony and counsel fees, for such allowances are based on a showing of necessity (Swinson v. Swinson, 29 A D 2d 693; Friedman v. Friedman, 5 A D 2d 864; cf. Glazer v. Glazer, 12 A D 2d 936). Nor, in our opinion, does the record warrant exclusion of defendant from his own home (cf. Epstein v. Epstein, 29 A D 2d 545). The parties’ 20-year-old son boards at college and their daughter is .a high school senior. In the circumstances, and in view of the foregoing, we deem an award of custody to be inappropriate (see, also, Le Henaff v. Le Henaff, 20 A D 2d 569). The action should proceed to trial promptly. If warranted by .the proof, the trial court may make an appropriate allowance nwna pro tune as of the return day of the motion presently under review (Light v. Light, 29 A D 2d 540). The decision on this appeal is without prejudice to any such determination. Christ, Acting P. J., Brennan, Rabin, Hopkins and Kleinfeld, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

32 A.D.2d 538, 299 N.Y.S.2d 646, 1969 N.Y. App. Div. LEXIS 4237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duboys-v-duboys-nyappdiv-1969.

Opinion

Related

Cite This Page — Counsel Stack