Opinion
June 12, 1975
Order, Supreme Court, New York County, entered September 12, 1974, which awarded defendant temporary child support in the sum of $350 per week, school expenses of the parties' son, and counsel fee of $1,000, unanimously modified, on the law and the facts, to provide and direct child support in the sum of $275 per week, and as so modified, affirmed, without costs and disbursements. Order, Supreme Court, New York County, entered November 22, 1974, adjudging plaintiff guilty of contempt, unanimously modified, on the law and the facts, to provide for a reduced fine reflective of the reduction in child support from $350 to $275 per week, and as so modified, affirmed, without costs and disbursements. A study of the record raises doubt as to whether plaintiff is able to support the issue of the marriage in the sum directed by Special Term. In view of the conceded standard of living provided by plaintiff for his family and in order to achieve a fairer balance of the equities, it is concluded that the order directing child support appealed from must be modified downward to provide for $275 child support per week. At the trial, the award directed herein should have no effect in the determination as to the grant of permanent child support or the amount thereof, which determination should rest upon the evidence adduced at trial. In view of the aforesaid, the fine fixed by Special Term in granting the defendant's application for an order of contempt, based on the court's direction of temporary child support of $350 per week, must be similarly revised downward. It is again noted that the best protection to both parties against any unfairness in the denial or fixing of temporary alimony and child support on the basis of affidavits is a speedy trial rather than appeal or reference (Bleiman v Bleiman, 272 App. Div. 760; see Gross v Gross, 44 A.D.2d 806). On this record, modification is limited to the foregoing observations. Settle order on notice.
Concur — Markewich, J.P., Murphy, Lupiano, Lane and Nunez, JJ.