Kaplan v. Kaplan

Appellate Division of the Supreme Court of New York

Kaplan v. Kaplan

25 A.D.2d 563, 267 N.Y.S.2d 844, 1966 N.Y. App. Div. LEXIS 4840

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

DecidedFebruary 28, 1966

StatusPublished

This text of 25 A.D.2d 563 (Kaplan v. Kaplan) 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

Kaplan v. Kaplan, 25 A.D.2d 563, 267 N.Y.S.2d 844, 1966 N.Y. App. Div. LEXIS 4840 (N.Y. Ct. App. 1966).

Pincite

Opinion

In an action for a separation, the defendant husband appeals from an order of the Supreme Court, Kings County, entered November 12, 1965, which awarded plaintiff $100 a week temporary alimony and a $750 counsel fee. Order modified by striking out its decretal paragraphs and by substituting therefor provisions to the effect that plaintiff’s motion for temporary alimony and a counsel fee is referred to the trial court for its determination upon the basis of such proof as may be adduced upon the trial. As so modified, order affirmed, without costs. Before a wife may be granted alimony pendente Hie and counsel fees there must be, inter alia, proof that she is unable to support herself from her own funds while the action is pending and that there is a reasonable probability of her success (Schoonheim v. Schoonheim, 21 A D 2d 812; Weinberg v. Weinberg, 23 A D 2d 569; Margel v. Margel, 22 A D 2d 919). Whatever may be said of plaintiff’s chances of success, in the light of her poorly corroborated claims and defendant’s version of the facts, in our opinion the record before us fails to show that she has any need for the present award of alimony pendente Kte or counsel fees to enable her to carry on the action. The sole issue of the marriage is a daughter of age, living away from home and provided for. Concededly, plaintiff is regularly employed, at a take-home pay of $64 a week, and has over $16,800 in savings banks derived, apparently, from defendant’s earnings. The action should proceed to trial promptly. If warranted by the proof, the trial court may make an appropriate allowance nunc pro time as of the return day of the original motion for alimony pendente lite (Margel v. Margel, supra). The decision upon this appeal is without prejudice to any such determination.

Beldoek, P. J., Christ, Hill, Rabin and Benjamin, JJ., concur.

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In an action for a separation, the defendant husband appeals from an order of the Supreme Court, Kings County, entered November 12, 1965, which awarded plaintiff $100 a week temporary alimony and a $750 counsel fee. Order modified by striking out its decretal paragraphs and by substituting therefor provisions to the effect that plaintiff’s motion for temporary alimony and a counsel fee is referred to the trial court for its determination upon the basis of such proof as may be adduced upon the trial. As so modified, order affirmed, without costs. Before a wife may be granted alimony pendente Hie and counsel fees there must be, inter alia, proof that she is unable to support herself from her own funds while the action is pending and that there is a reasonable probability of her success (Schoonheim v. Schoonheim, 21 A D 2d 812; Weinberg v. Weinberg, 23 A D 2d 569; Margel v. Margel, 22 A D 2d 919). Whatever may be said of plaintiff’s chances of success, in the light of her poorly corroborated claims and defendant’s version of the facts, in our opinion the record before us fails to show that she has any need for the present award of alimony pendente Kte or counsel fees to enable her to carry on the action. The sole issue of the marriage is a daughter of age, living away from home and provided for. Concededly, plaintiff is regularly employed, at a take-home pay of $64 a week, and has over $16,800 in savings banks derived, apparently, from defendant’s earnings. The action should proceed to trial promptly. If warranted by the proof, the trial court may make an appropriate allowance nunc pro time as of the return day of the original motion for alimony pendente lite (Margel v. Margel, supra). The decision upon this appeal is without prejudice to any such determination.

Beldoek, P. J., Christ, Hill, Rabin and Benjamin, JJ., concur.

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Bluebook (online)

25 A.D.2d 563, 267 N.Y.S.2d 844, 1966 N.Y. App. Div. LEXIS 4840, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kaplan-v-kaplan-nyappdiv-1966.