Lewis v. Lewis

37 A.D.2d 725, 323 N.Y.S.2d 864, 1971 N.Y. App. Div. LEXIS 3547

Opinion

In an action for divorce based on a separation agreement, plaintiff appeals from an order of the ^Supreme Court, Westchester County, dated December 7, 1970, which, upon defendant’s motion, directed plaintiff to pay $50 per week alimony pendente lite and $500 as a counsel fee to defendant’s attorneys. Order reversed, without costs, motion denied as to temporary alimony and motion as to a counsel fee referred to the trial court. At the time of the execution of the separation agreement on November 10, 1967, defendant was a licensed practical nurse earning in excess of $6,000 per year. Accordingly, the separation agreement made no provision for her support. Defendant thereafter left her job and returned to college to seek a Bachelor of Science degree in nursing. We are of the opinion that in view of the circumstances of the parties the award of alimony pendente lite was an abuse of discretion. Plaintiff should not be compelled to support defendant, as she voluntarily left her well-paying position to seek a college degree and is therefore capable of being “ self supporting ” within the meaning of section 236 of the Domestic Relations Law. Munder, Acting P. J., Martuscello, Latham, Shapiro and Gulotta, JJ., concur.