Summary
In Sklan (29 A.D.2d 526, supra) also on appeal by defendant, the weekly temporary alimony awarded was modified by the reviewing court so as to include therein "rent and tuition for the issue of the marriage," because it was deemed "preferable to provide for a specific dollar award of temporary alimony and support rather than directing the payment of categories of support which may be subject to increase beyond the amount contemplated by the court" (citing Schine v. Schine, supra).
Summary of this case from Millner v. MillnerOpinion
December 19, 1967
The order of September 11, 1967, holding the application for temporary alimony and counsel fee in abeyance pending the determination of the issue of jurisdiction, unanimously reversed, on the law, the facts, and in the exercise of discretion, without costs or disbursements. In view of the disposition of the companion appeal vacating the order of reference on the issue of jurisdiction, we deem it appropriate to fix temporary alimony. Temporary alimony is fixed at the sum of $135 a week, to include rent and tuition for the issue of the marriage. We deem it preferable to provide for a specific dollar award of temporary alimony and support rather than directing the payment of categories of support which may be subject to increase beyond the amount contemplated by the court. The award of temporary alimony and support is not determinative of the permanent alimony and support, which will be governed by the evidence adduced at the trial. (See Schine v. Schine, 28 A.D.2d 976.) Counsel fee is allowed in the sum of $1,000, without prejudice to an application to the trial court for additional counsel fee. One half of said counsel fee is to be paid within 20 days after entry of an order hereon, the balance when the case first appears on the Day Calendar. Order, entered August 18, 1967, referring the issue of jurisdiction to a Special Referee, unanimously reversed, on the law, the facts, and in the exercise of discretion, and the reference vacated, without costs or disbursements, with leave to defendant to amend his answer to plead the defense of lack of jurisdiction. The jurisdictional issue, if pleaded by way of defense, is directed to be tried first. This procedure will avoid circuity. (See Cardy v. Cardy, 14 A.D.2d 735.) Appeal from order, entered September 11, 1967, denying motion to reargue, dismissed as nonappealable, without costs or disbursements. ( Matter of Kleinert v. Gabel, 18 A.D.2d 990; Matter of Dalminter, Inc., 23 A.D.2d 749, 750; United Artists Television, v. Quality Bakers of America Co-op., 27 A.D.2d 651. )
Concur — Botein, P.J., Stevens, Eager, Steuer and McNally, JJ.