Opinion
April 12, 1971
In proceedings (1) to modify a judgment of separation which was granted to petitioner in the Supreme Court, Nassau County on September 19, 1969, so as to increase the support provisions therein, and (2) for relief with respect to alleged arrears in support payments, the appeal is from an order of the Family Court, Nassau County, dated October 22, 1970 and entered November 18, 1970, which (1) directed appellant to pay $65 per week for support of petitioner and the parties' two children (the separation judgment had fixed the amount at $30 per week); (2) found him in arrears of $182; (3) sentenced him to 30 days in jail in the event the arrears were not paid by December 1, 1970; and (4) directed him to pay $450 as petitioner's counsel fees. Order reversed, on the law and the facts, without costs; petition to modify the judgment denied; and case remanded to the Family Court for a determination of the arrears, in accordance with the views herein set forth. The judgment of separation, entered September 19, 1969, included an award of $30 per week support to be paid to petitioner. The petition herein to increase the support payments, dated January 16, 1970, was on the ground that there had been a substantial increase in appellant's income. A temporary support order made by the Family Court on June 19, 1970 granted petitioner $50 per week as temporary support. At the hearing petitioner testified she had no factual information to show that appellant's income had increased. In fact, appellant had changed jobs, but there was no material change in his income. There is insufficient evidence on the record to find that there was any material change in appellant's income or his earning capacity. In our opinion, the Family Court should not have relitigated the question of appellant's financial status after so short an interval between the date of the separation judgment and the date of petitioner's application to modify the judgment ( Presberg v. Presberg, 285 App. Div. 1134; Gargiulo v. Gargiulo, 18 A.D.2d 1013). Further, there was no jurisdiction to award temporary support after the judgment of separation with provision for support had been granted in the prior proceeding before the Supreme Court ( Lowe v. Lowe, 279 App. Div. 852; Hirshman v. Hirshman, 262 App. Div. 1037). Section 236 Dom. Rel. of the Domestic Relations Law specifically limits temporary support to a proceeding for annulment, separation or divorce. Such an award is not authorized in a modification proceeding. Consequently, the determination of arrears was null and void insofar as it included amounts increased by the temporary support order. Finally, we find that it was an improvident exercise of discretion to award counsel fees. The application by petitioner was entirely without merit. Petitioner admitted in the course of her own testimony that she had no factual information to show that appellant had improved his income. In those circumstances counsel fees should not have been awarded. Rabin, P.J., Munder, Latham, Christ and Brennan, JJ., concur.