Frost v. Frost

38 A.D.2d 786, 328 N.Y.S.2d 77, 1972 N.Y. App. Div. LEXIS 5578

Opinion

Order unanimously affirmed, without costs. Memorandum: The tax consequences to the respective parties in a matrimonial action resulting from an award of temporary alimony may not serve as the basis for an attack upon the exercise of Special Term’s discretion. The husband’s weekly income is $300; Special Term awarded temporary alimony to his school teacher wife in the amount of $150 per week. In this case, although the wife’s action for separation was commeneed December 14, 1970, the record does not reveal that any complaint had been served. The remedy for any claimed inequity in awards of temporary alimony, child support or maintenance is a speedy trial where the respective finances of the parties can be ascertained and a permanent award based on the evidence may be made (Cohen v. Cohen, 32 A D 2d 754). As we stated in De Gasper v. De Gasper (31 A D 2d 886) “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; Malin v. Malin, 37 A D 2d 841; Goldstein v. Goldstein, 35 A D 2d 777). (Appeal from parts of order of Brie Special Term allowing temporary alimony and support.) Present — Marsh, J. P., Witmer, Moule, Cardamone and Henry, JJ.