Klein v. Klein

58 A.D.2d 811, 396 N.Y.S.2d 266, 1977 N.Y. App. Div. LEXIS 12978

Opinion

In a support proceeding pursuant to article 4 of the Family Court Act, petitioner appeals from an order of the Family Court, Kings County, dated January 21, 1977, which, inter alia, awarded a counsel fee for services rendered to respondent’s attorney on a prior appeal and denied petitioner’s cross motion to vacate a payroll deduction order. Order modified, on the law and the facts, by reducing the amount of the payroll deduction to the sum of $50 per week. As so modified, order affirmed, without costs or disbursements. The petitioner was not entitled to restitution or recoupment of alimony payments made. "It has been so held in respect of alimony pendente lite (Surut v. Surut, 191 App. Div. 570), and in respect of permanent alimony (Grifñn v. GrifBn, 219 App. Div. 370; see, also, 27 C. J. S., Divorce, § 215).” (Haas v Haas, 271 App Div 107, 109.) The payroll deduction order should be reduced, however, to reflect this court’s reduction of support to $50 per week (see Matter of Klein v Klein, 54 AD2d 908). It is also alleged by the petitioner that section 438 of the Family Court Act is unconstitutional. Since the petitioner made no request for counsel fees, nor was any such request denied, it is apparent that he lacks standing to raise this issue (see 8 NY Jur, Constitutional Law, §§ 50-52). The award of counsel fees was properly made under that statute. Latham, J. P., Rabin, Titone and O’Connor, JJ., concur.