Sloan v. Sloan

29 A.D.2d 571, 286 N.Y.S.2d 501, 1967 N.Y. App. Div. LEXIS 2640

Opinion

In an action for separation, plaintiff appeals from an order of the Supreme Court, Bangs County, dated May 3, 1966, which granted in part and denied in part her motion to modify an amended decree of separation dated March 21, 1956 and for a counsel fee. Order modified, on the law and the facts, by striking out the first and fourth decretal paragraphs thereof, which respectively increased the award of alimony from $135 a week to $150 a week and allowed plaintiff a counsel fee of $150; order affirmed as so modified, without costs; and motion, insofar as it is to increase alimony and for a counsel fee, remitted to the Special Term (1) for a plenary hearing as to the present financial resources and needs of the parties and all other facts relevant to whether any increase in alimony is warranted and, if so, in what amount, and (2) for the purpose of making a determination de nova, on the basis of all the proof adduced, of plaintiff’s motion insofar as it is to increase alimony and for a counsel fee. In our opinion, the conflicting affidavits submitted by the parties are insufficient to support a proper determination on the merits of plaintiff’s motion insofar as it is for an increase in alimony and for a counsel fee. Therefore, a hearing must be held to develop all the facts relevant thereto (cf. Sloan v. Sloan, 286 ; Alpert v. Alpert, 20 A D 2d 650; Oreste v. Oreste, 27 A D 2d 560). The motion was properly denied insofar as it sought to accelerate the unpaid balance of the fine previously imposed. Brennan, Acting P. J., Rabin, Hopkins, Benjamin and Munder, JJ., concur.