O'Connor v. O'Connor

277 A.D.2d 1010

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 30, 1950
• Status: Published

Opinion

On December 1, 1938, plaintiff obtained a decree of separation which, among other things, provided that defendant pay plaintiff for the support of herself and the four children of the marriage $75 a week, that amount to be reduced by $10 a week as each child marries or becomes of age, or becomes wholly self-supporting. After two daughters had married and became of age, plaintiff applied on December 4, 1945, for an order modifying the separation decree by increasing the alimony to plaintiff to $200 a week. After hearings before an official referee, an order was made on June 3, 1946, increasing the allowance to $90 a week. On appeal to this court, the $90 allowance was reduced to $75 a week. (271 App. Div. 975.) After the younger girls married and became of age, defendant commenced paying $55 a week. Claiming that the $75 a week awarded by this court on February 3, 1947, was intended to be for her support alone and not for the support of herself and the two younger girls, plaintiff applied for leave to enter a judgment for the arrears in alimony, being the difference between the $75 a week awarded and the $55 a week defendant actually paid, for an increase in alimony to $100 a week, and for a counsel fee. Plaintiff’s application was granted to the extent of granting the judgment prayed for and an allowance of $150 as counsel fee. Plaintiff’s application for an increase in alimony was denied. Both plaintiff and defendant appeal from those parts of the order which adversely affect each. Defendant also appeals from the judgment entered pursuant to the order. Order modified on the law and the facts by striking from the first ordering paragraph the words “hereinafter indicated” and inserting in place thereof a provision granting plaintiff’s motion to the extent of awarding her $75 a week, payable solely for her support, beginning from the date that the order to show cause, dated March 3, 1950, was served; and further modified by striking from .the second ordering paragraph everything except the $150 allowance, to plaintiff as counsel fee and for expenses. As thus modified, the order, insofar as appealed from, is unanimously affirmed, without costs. The judgment entered May 8, 1950, pursuant to the order of May 2, 1950, is vacated, without costs. The award of $75 a week made by this court on February 3, 1947, was for the support of plaintiff and the two younger daughters. However, the award of $55 a week for plaintiff was based on defendant’s 1945 salary, without considering the bonuses that he had received for the prior years, but which he had not yet received for 1945 at the time of the hearing before the Official Referee on the prior application. The regularity of these bonuses warrants an increase of the allowance to plaintiff to $75 a week for her support. Present — Nolan, P. J., Johnston, Adel, Sneed and Wenzel, JJ. Settle order on notice.