Gallo v. Gallo

50 A.D.2d 830, 376 N.Y.S.2d 590, 1975 N.Y. App. Div. LEXIS 11684

Opinion

— In a matrimonial action, the defendant husband appeals, as limited by his brief, from so much of a judgment of divorce of the Supreme Court, Nassau County, entered February 11, 1975, after a nonjury trial, as awarded plaintiff alimony. Judgment reversed insofar as appealed from, on the law and the facts, without costs, and plaintiff’s application for alimony is denied, with leave to renew the application upon a showing of changed circumstances. According to the uncontroverted testimony of defendant, he was unemployed at the time of trial and, although he had applied for unemployment insurance benefits, he did not yet know the specific weekly amount of the benefits which he would receive. Consequently, it was improper to award alimony to plaintiff in a specified amount while defendant is unemployed and collecting unemployment insurance benefits, with that amount to increase when he is again employed; the alimony can be fixed in the future to meet changing conditions (see Domestic Relations Law, § 236; McMains v McMains, 15 NY2d 283; Golden v Golden, 37 AD2d 578; Lebowitz v Lebowitz, 37 AD2d 841). It should also be noted that plaintiff is employed and earning take-home pay of $106 per week. Rabin, Acting P. J., Latham, Margett, Christ and Shapiro, JJ., concur.