Heller v. Heller

38 A.D.2d 526, 326 N.Y.S.2d 939, 1971 N.Y. App. Div. LEXIS 2762

Opinion

Order, Supreme Court, New York County, entered September 23, 1971, awarding plaintiff the sum of $340 per week as temporary support of the infant issue of the parties, together with custody and exclusive possession of the marital apartment located at 2 Sutton Place South, New York, and ordering defendant to vacate the premises, unanimously reversed, on the law, on the facts, and in the exercise of discretion, without costs and without disbursements, and the motion denied, without prejudice to renewal by plaintiff wife of her motion for temporary alimony in the event defendant, pending trial, fails to continue support payments at their present level or upon other changed circumstances. Since it is plainly evident that the defendant, a physician, has continued to support and maintain the plaintiff and their children in the same style and manner as he did before this action was instituted and the plaintiff wife has a reasonable fortune of her own, there is no basis for a pendente lite award of alimony, for such an award is legally founded on a showing of necessity. (Spellman v. Spellman, 33 A D 2d 683.) And since the defendant has, as appears from the papers, apparently committed no acts of violence, nor threatened any violence, nor is there any corroboration of such acts, if any, and since the parties have been married since February, 1956, and residing in the same apartment since February, 1971, the record before us does not warrant exclusion of defendant from his own home. (Duboys v. Duboys, 32 A D 2d 538; Ross v. Ross, 24 A D 2d 125; Baker v. Baker, 16 A D 2d 409.) The action should proceed to trial promptly. Concur — McGivern, J. P., Markewich, Nunez, Kupferman and Eager, JJ.