Opinion
October 25, 1962
Order, entered on September 20, 1962, unanimously modified on the law and the facts by reducing the award of temporary alimony for the support of plaintiff and the infant daughter of the parties to $300 per week and the counsel fees to $2,000, with leave to apply to the trial court for an additional counsel fee, if the circumstances warrant, and as so modified, affirmed, without costs. The award of $2,000 counsel fees shall be inclusive of the $1,000 paid pursuant to the order to show cause dated September 25, 1962. In our opinion, upon the basis of the facts — insofar as they can be determined from the conflicting affidavits of this record — the awards made at Special Term were excessive. As this court pointed out in Barnes v. Barnes ( 3 A.D.2d 242): "The preliminary determination [of temporary alimony] is made upon the basis of motion papers which may leave unresolved contested and confused claims as to the financial needs and resources of the parties." The determination of the fair and proper amount of temporary alimony in this case was particularly difficult in view of the sharp, and perhaps irreconciliable, variance between the exaggerated claims of plaintiff as to her financial needs and defendant's palpably disingenuous concealment of the true nature of his income and resources. But, as the court said in Rabins v. Rabins ( 282 App. Div. 690) the fact that the wife exaggerated her claims to temporary alimony "is no ground for giving her less than she is entitled to though much less than she demanded." However, the award of temporary alimony, based on the conflicting affidavits, should have no effect upon the Trial Judge in his determination as to the amount of permanent alimony which may be awarded. Settle order on notice.
Concur — Botein, P.J., Breitel, Valente, McNally and Eager, JJ.