Ferguson v. Ferguson

10 A.D.2d 1004, 204 N.Y.S.2d 577, 1960 N.Y. App. Div. LEXIS 9570

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 31, 1960
• Status: Published

Opinion

In an action for a separation, the plaintiff wife appeals from so much of a resettled order and the original order of the Supreme Court, Queens County, dated respectively March 25, 1959 and March 9, 1959, as granted hex-motion for a larger alimony allowance and a suitable counsel fee to the extent of increasing the permanent alimony awarded by the judgment of separation from $100 to $125 a week commencing Februa:ry 11, 1959, and awarding her a counsel fee of $500. She contends that such increase and such award are inadequate in view of the defendant husband’s financial resoux-ces. Resettled order modified by striking from its first and third ordering paragraphs the direction to pay alimony at the rate of $125 a week commencing as of February 11, 1959; by striking from its second ordering paragraph the fixation of the counsel fee at $500; and by substituting therefor provisions granting plaintiff’s motion to the extent of: (1) increasing the alimony from $100 to $225 a week, commencing as of June 26, 1958; (2) amending accordingly the decretal provisions of the judgment of separation; and (3) fixing the counsel fee at $2,000. As so modified, resettled order, insofar as appealed from, affirmed, with costs to the wife. Under the circumstances here present, an increase of pex-manent alimony to $225 and the fixation of the counsel fee at $2,000 are warranted, in addition to the carrying charges specified in .the resettled ox-der with respect to the home in Forest Hills owned by the parties as tenants by the entix-ety. The increase in alimony should take effect as of June 26, 1958, the x-eturn date of plaintiff’s second motion for increased alimony and for a counsel fee (Harris v. Harris, 259 N. Y. 334). Appeal from original order dismissed, without costs. Such order was superseded by the resettled order. Beldock, Acting P. J., Ughetta, Christ and Brennan, JJ., concur; Kleinfeld, J., concurs in the dismissal of the appeal from the original order and in the increase of the counsel fee, but dissents as to the further increase of the alimony from $125- to $225 a week, on the authority of Hearst v. Hearst (3 A D 2d 706, affd. 3 N Y 2d 967), and votes to affirm the portions of the resettled order with respect to the increase of alimony.