79 A.D.2d 928 | N.Y. App. Div. | 1981
Order, Supreme Court, New York County, entered on August 1, 1980, unanimously modified, on the law and in the exercise of discretion, to strike that portion which granted defendant-respondent-appellant’s motion for retroactive child support in the sum of $1,300, and to strike the first ordering paragraph thereof which denied defendant-respondent-appellant’s motion for alimony pendente lite, substituting therefor an award of the same at $100 per week, and otherwise affirmed, without costs. This action is for divorce by the husband against the wife on grounds of cruel and inhuman treatment, abandonment, and adultery; a fourth cause seeks to set aside a certain separation agreement signed by the parties as executed under duress and coercion. Defendant wife’s answer was a general denial. Defendant moved in the action for child support, temporary alimony, counsel fee, and change of venue for convenience of witnesses. Special Term granted the change of venue, properly we hold. As far as we are informed, there is no pending plenary action anywhere for breach of the separation agreement, nor any counterclaim thereunder set up in the answer, even assuming it could have been adjudicated on the basis of the motion. Thus, there was no authority in Special Term to grant any relief for arrears in payment of child support under the agreement. Accordingly, we strike that portion of the order relating to the arrears. This being an action for divorce, not separation, and the husband himself denying the validity of the separation agreement and complying only partially therewith, we see no reason why both child support and alimony should not have been granted pendente lite on the motion; it is the husband who has injected the issue of validity into this case, and his wife and child should not suffer impoverishment while awaiting resolution of that issue. We remedy that defect by the relief granted above. We affirm denial of counsel fee at this time, referring that question to the trial court. Concur — Fein, J. P., Sandler, Markewich and Carro, JJ.
