Loving v. Loving

53 A.D.2d 573, 384 N.Y.S.2d 813, 1976 N.Y. App. Div. LEXIS 13202

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 22, 1976
• Status: Published

Opinion

Judgment, Supreme Court, New York County, entered on February 3, 1975, granting plaintiff a divorce, alimony and related relief and dismissing defendant’s counterclaim for a divorce, unanimously modified, on the law, on the facts and iq the exercise of discretion, to the extent of striking the first three decretal paragraphs of the judgment appealed from, and ordering a new trial thereon, and, as so modified, the judgment is affirmed, without costs and without disbursements. The alimony awarded below shall be continued as temporary alimony and the counsel fees are directed to be paid within 20 days of service of a copy of the order entered hereon, with notice of entry. In this close case the trial court’s refusal to admit evidence of provocation (Mante v Mante, 34 AD2d 134, 140) and its exclusion of evidence pertaining to plaintiff’s earning capacity or assets prior to the January 22, 1973 support determination of the Family Court, constituted errors warranting a new trial. The Family Court itself recognized that the level of support established by it was not binding upon subsequent proceedings in the Supreme Court. In its decision and order dated January 22, 1973, the court correctly stated that: "In entering the final order for support this court recognizes that its decision can be determined de novo in the divorce proceedings now pending”. (See Kover v Kover, 29 NY2d 408.) Concur— Stevens, P. J., Kupferman, Murphy, Capozzoli and Yesawich, JJ.