Opinion
February 3, 1977
Judgment, Supreme Court, New York County, entered July 26, 1976, which, inter alia, awarded alimony to the plaintiff in the sum of $200 per week; an additional sum of $50 per week child support for each of three children; counsel fees of $3,500; and denied judgment on arrears for temporary alimony and child support from June 26, 1975 through November 21, 1975, unanimously modified, on the law and the facts and in the exercise of discretion to the extent of reducing alimony from $200 to $150 per week; striking the award of counsel fees; and remanding for a hearing on the proper credit to be allowed to the defendant towards arrears, and otherwise affirmed, without costs or disbursements. Our review of the record indicates that the award of alimony was excessive to the extent indicated. With regard to the counsel fees awarded at Trial Term, it appears that the plaintiff has means to pay the fee, and therefore it should not have been included in the award. To the extent reimbursement may be sought for payments made by her father, his recovery must be predicated on an action for necessaries (Kann v Kann, 38 A.D.2d 545). It appears further that the defendant had made voluntary support payments prior to the award of temporary alimony for which he is entitled to credit pursuant to the pendente lite order of the court. However, we find that the present record is unclear as to the extent payments made also encompassed defendant's own obligations and we have accordingly remanded that aspect of the action for a further hearing.
Concur — Murphy, J.P., Lupiano, Silverman and Lane, JJ.