Opinion
June 17, 1985
Appeal from the Supreme Court, Westchester County (Dachenhausen, J.).
Order affirmed, insofar as appealed from, with costs.
In July of 1980, a judgment of divorce was obtained by the plaintiff dissolving the marriage between the parties by reason of the defendant husband's cruelty. Prior to the entry of the judgment of divorce, in August of 1979 an order was obtained in that action directing defendant to pay temporary alimony and support to plaintiff. In February of 1984, plaintiff instituted these two separate actions to obtain, inter alia, reimbursement for necessaries purchased in 1978 and 1979, and the recovery of arrears purportedly due and owing under the 1979 order of temporary support.
With respect to the claim for necessaries, we see no reason why the issues raised in action No. 1 could not have been raised years earlier in the matrimonial action. That was the appropriate forum in which to raise and adjudicate the question of necessaries expended in 1978 and 1979. The parties had the right, moreover, to expect that any such claims not there considered were not to be litigated. Plaintiff's commencement of action No. 1, outside the framework of the matrimonial action, severely impairs this right and cannot be sanctioned ( Marinelli v Marinelli, 88 A.D.2d 635, 636; Rakowski v. Rakowski, 109 A.D.2d 1). Moreover, the entry of the judgment of divorce in plaintiff's favor in July of 1980 terminated the matrimonial action, and thereupon any right that plaintiff had to enforce the temporary order of support was lost ( Weaver v. Weaver, 72 A.D.2d 221, 223). We have reviewed plaintiff's remaining contentions and find them to be without merit. Thompson, J.P., Bracken, Weinstein and Niehoff, JJ., concur.