Falanga v. Falanga

Appellate Division of the Supreme Court of New York

Falanga v. Falanga

18 A.D.2d 670, 235 N.Y.S.2d 473, 1962 N.Y. App. Div. LEXIS 6477

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

DecidedDecember 10, 1962

StatusPublished

This text of 18 A.D.2d 670 (Falanga v. Falanga) 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

Falanga v. Falanga, 18 A.D.2d 670, 235 N.Y.S.2d 473, 1962 N.Y. App. Div. LEXIS 6477 (N.Y. Ct. App. 1962).

Pincite

Opinion

In an by a against her husband for a separation, the husband appeals from an order of the Supreme Court, Queens County, dated August 6, 1962, which granted the wife’s motion for temporary alimony and counsel fee and directed the husband to pay alimony of $35 per week and a counsel fee of $350. Order modified by reducing the alimony to $25 a week as of July 30, 1962, and by striking out its third, fourth and fifth decretal paragraphs with respect to the [671]*671counsel fee; and by substituting therefor a provision granting leave to plaintiff, if so advised, to apply to the trial court for a counsel fee. As so modified, order affirmed, without costs. Plaintiff is the owner of a two-family house from which she derives an income from tenants; and she has paid her attorney the sum of $200. There is no issue of the marriage. Defendant receives a biweekly take-home pay of $145.58; and he has several thousand dollars in savings. In our opinion, in the light of the relative financial condition of the parties, and particularly in light of the defendant’s low income, the award to plaintiff, pendente lite, of alimony of $35 a week and of a counsel fee of $350 constituted an improvident exercise of discretion. In the instant case, the counsel fee, if any, can best be determined by the Trial Justice; hence, the question of such fee should be reserved for determination by him. Our disposition on this appeal is not intended to govern or to influence the Trial Justice’s exercise of his discretion, upon the basis of the proof adduced at the trial, with respect to the allowance of a counsel fee or its amount and with respect to the fixation of permanent alimony or its amount. Beldock, P. J., Ughetta, Brennan, Hill and Hopkins, JJ., concur.

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In an by a against her husband for a separation, the husband appeals from an order of the Supreme Court, Queens County, dated August 6, 1962, which granted the wife’s motion for temporary alimony and counsel fee and directed the husband to pay alimony of $35 per week and a counsel fee of $350. Order modified by reducing the alimony to $25 a week as of July 30, 1962, and by striking out its third, fourth and fifth decretal paragraphs with respect to the [671]*671counsel fee; and by substituting therefor a provision granting leave to plaintiff, if so advised, to apply to the trial court for a counsel fee. As so modified, order affirmed, without costs. Plaintiff is the owner of a two-family house from which she derives an income from tenants; and she has paid her attorney the sum of $200. There is no issue of the marriage. Defendant receives a biweekly take-home pay of $145.58; and he has several thousand dollars in savings. In our opinion, in the light of the relative financial condition of the parties, and particularly in light of the defendant’s low income, the award to plaintiff, pendente lite, of alimony of $35 a week and of a counsel fee of $350 constituted an improvident exercise of discretion. In the instant case, the counsel fee, if any, can best be determined by the Trial Justice; hence, the question of such fee should be reserved for determination by him. Our disposition on this appeal is not intended to govern or to influence the Trial Justice’s exercise of his discretion, upon the basis of the proof adduced at the trial, with respect to the allowance of a counsel fee or its amount and with respect to the fixation of permanent alimony or its amount. Beldock, P. J., Ughetta, Brennan, Hill and Hopkins, JJ., concur.

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Bluebook (online)

18 A.D.2d 670, 235 N.Y.S.2d 473, 1962 N.Y. App. Div. LEXIS 6477, Counsel Stack Legal Research, https://law.counselstack.com/opinion/falanga-v-falanga-nyappdiv-1962.