Opinion
March 3, 1975
Order, Supreme Court, New York County, entered December 2, 1974, granting plaintiff's motion for temporary alimony, child support and counsel fee, and directing that defendant pay alimony in the sum of $250 per week, child support in a like sum, and counsel fee of $2,000, unanimously modified, on the law and the facts, to provide and direct weekly alimony and child support payments in the respective sums of $200, and as so modified, affirmed, without costs and without disbursements. In fixing the amount of temporary alimony to be awarded, the court looks, in the first instance, to the provisions of section 236 Dom. Rel. of the Domestic Relations Law. The statute provides that the court may direct the husband to provide "suitably for the support of the wife as, in the court's discretion, justice requires, having regard to the length of time of the marriage, the ability of the wife to be self supporting, the circumstances of the case and of the respective parties." As stated in Phillips v. Phillips ( 1 A.D.2d 393, 398, affd. 2 N.Y.2d 742): "The ultimate determination in each case must depend upon a balancing of several factors — the financial status of the respective parties, their age, health, necessities and obligations, their station in life, the duration and nature of the marriage, and the conduct of the parties." Scrutiny of the record warrants finding that plaintiff is able to some extent to be self supporting. Applying the principles enunciated above to the case at bar, it is concluded that, in order to achieve a fairer balance of the equities, the order appealed from must be modified downward to provide for $200 alimony per week and child support in a like sum (see Kover v. Kover, 29 N.Y.2d 408). It is again noted that "The best protection to both parties against any unfairness in the fixing of temporary alimony on the basis of affidavits is a speedy trial rather than an appeal or reference" ( Bleiman v. Bleiman, 272 App. Div. 760; see Gross v. Gross, 44 A.D.2d 806). At the trial, the awards directed herein should have no effect in the determinations as to the grant of permanent alimony, child support or the amounts thereof, which determinations should rest upon the evidence adduced at said trial. On this record, modification is limited to the foregoing observations.
Concur — Markewich, J.P., Murphy, Lupiano and Nunez, JJ.