Summary
In Bernstein, the trial court gave the wife possession of the marital residence, part of which residence had been used as an office by her husband, a chiropractor.
Summary of this case from Whitmore v. WhitmoreOpinion
February 8, 1971
In an action for divorce, defendant-husband appeals from an order of the Supreme Court, Nassau County, entered August 19, 1970, which, upon plaintiff's motion, (1) granted her (a) pendente lite, weekly, $25 for her support and maintenance and $75 for the support and maintenance of the two children of the marriage, (b) counsel fees of $750 and (c) exclusive occupancy of the marital residence; and (2) directed defendant to pay the carrying charges on the marital residence. Order modified (1) by striking therefrom the awards to plaintiff for her support and maintenance and for a counsel fee; (2) by adding thereto a provision that the matter of a counsel fee is reserved to the trial court; (3) by reducing the sum provided therein for the support and maintenance of the parties' two children from $75 per week to $50 per week, and (4) by adding to the provision therein awarding exclusive occupancy of the marital residence to plaintiff the following: "except that defendant is permitted to use, for the purpose of conducting his chiropractic practice, such part of the marital residence theretofore used for such purpose, but only during the hours from 9 A.M. to 9 P.M., daily except Sundays". As so modified, order affirmed, without costs. In our opinion, it was an improvident exercise of discretion for Special Term to have made the awards it made. The parties' 1968 and 1969 joint Federal tax returns show plaintiff's income to be in excess of that of defendant with virtually no dividends or interest reported. Such returns, while not controlling on the question of means, are nevertheless probative and the fact that plaintiff joined in the returns is a circumstance calculated to uphold their accuracy ( Hodas v. Hodas, 286 App. Div. 1027). The award in particular to plaintiff of exclusive occupancy deprives defendant in part of the very means necessary to comply with the order under review. Inasmuch as plaintiff's attorney has already been paid $500, albeit out of plaintiff's own funds, any further requests for counsel fees under the circumstances of this case should be reserved for the trial. Despite our comprehensive review of this temporary order, we reaffirm our belief that in general the best protection for parties aggrieved by a temporary order for support and maintenance in a matrimonial action is to seek a speedy trial upon which all of the conflicting claims can be fully determined ( Leonard v. Leonard, 1 A.D.2d 981). Munder, Acting P.J., Martuscello, Shapiro, Christ and Benjamin, JJ., concur.