Opinion
December 4, 1975
Order, Supreme Court, New York County, entered on September 4, 1975, insofar as it awarded plaintiff temporary alimony and child support in the sum of $400 per week, plus mortgage payments, etc, exclusive possession of the marital residence and ordered that the children "be in the joint custody of the parties * * * with visitation to be agreed to by the parties" unanimously modified, on the law, the facts and in the exercise of discretion, to the extent of reducing the award of temporary alimony and child support to $200 per week and deleting the second and third decretal paragraphs of the order and, as so modified, the order is affirmed, without costs and without disbursements. Giving due consideration to the parties' status and finances, an award in excess of that mentioned above is not justified on the basis of the conflicting and inconclusive affidavits submitted at Special Term. Plaintiff has not shown the commission or threat of any acts by defendant, or anything else, which would justify an award to her of exclusive possession of the marital residence (Heller v Heller, 38 A.D.2d 526, 527). No present need has been shown which would justify action by the court on the issue of custody.
Concur — Stevens, P.J., Kupferman, Murphy, Lupiano and Capozzoli, JJ.