McAlphin v. McAlphin

Appellate Division of the Supreme Court of New York

McAlphin v. McAlphin

25 A.D.2d 674, 268 N.Y.S.2d 574, 1966 N.Y. App. Div. LEXIS 4734

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

DecidedMarch 21, 1966

StatusPublished

This text of 25 A.D.2d 674 (McAlphin v. McAlphin) 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

McAlphin v. McAlphin, 25 A.D.2d 674, 268 N.Y.S.2d 574, 1966 N.Y. App. Div. LEXIS 4734 (N.Y. Ct. App. 1966).

Pincite

Opinion

In an action for separation on the ground of abandonment, defendant husband appeals from an order of the Supreme Court, Kings County, entered October 14, 1965, which granted plaintiff wife’s motion and directed him to pay to her $30 per week as temporary alimony and a $300 counsel fee. Order reversed, without costs, and motion for temporary alimony and counsel fee referred to the trial court for determination, on condition that, pending trial and determination of the issues, defendant shall continue to pay all the operating, repair and maintenance expenses of the jointly-owned dwelling property. In our opinion, in view of the fact that plaintiff occupies one of the two apartments of the jointly-owned two-family home' rent free and collects $115 per month as rent for the other apartment, the direction to pay plaintiff $30 per week as alimony pendente lile was an improvident exercise of discretion in the light of defendant’s net earnings of $110 per week, out of which he is required to pay the repair and maintenance costs of the property and, in addition, certain undisputed amounts on debts, a substantial part of which was created primarily by plaintiff. Moreover, under the facts presented, the question of alimony and counsel fee should have been left for the trial court’s determination. In our opinion, the interests of the parties would best be served if they proceeded to trial at an early date.

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

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In an action for separation on the ground of abandonment, defendant husband appeals from an order of the Supreme Court, Kings County, entered October 14, 1965, which granted plaintiff wife’s motion and directed him to pay to her $30 per week as temporary alimony and a $300 counsel fee. Order reversed, without costs, and motion for temporary alimony and counsel fee referred to the trial court for determination, on condition that, pending trial and determination of the issues, defendant shall continue to pay all the operating, repair and maintenance expenses of the jointly-owned dwelling property. In our opinion, in view of the fact that plaintiff occupies one of the two apartments of the jointly-owned two-family home' rent free and collects $115 per month as rent for the other apartment, the direction to pay plaintiff $30 per week as alimony pendente lile was an improvident exercise of discretion in the light of defendant’s net earnings of $110 per week, out of which he is required to pay the repair and maintenance costs of the property and, in addition, certain undisputed amounts on debts, a substantial part of which was created primarily by plaintiff. Moreover, under the facts presented, the question of alimony and counsel fee should have been left for the trial court’s determination. In our opinion, the interests of the parties would best be served if they proceeded to trial at an early date.

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

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Bluebook (online)

25 A.D.2d 674, 268 N.Y.S.2d 574, 1966 N.Y. App. Div. LEXIS 4734, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcalphin-v-mcalphin-nyappdiv-1966.