267 A.D. 1 | N.Y. App. Div. | 1943
On August 28, 1932, Anastasia Carbulon sued her husband John for a separation. Shortly thereafter she moved for alimony pendente lite and counsel fees. An interim allowance of ten dollars per week alimony was made and the issue of defendant’s financial ability was sent to an Official Referee. Meanwhile the husband complained to the Federal immigration authorities that his wife and her parents had illegally entered the United States and he also brought action against her in the Supreme Court to annul their marriage on the ground that she had fraudulently represented her citizenship. The Official Referee died before the hearings were concluded. The annulment action was tried and decided in the wife’s favor. The husband then left' the State and has since remained outside. Plaintiff obtained an order for his arrest, but it remained unexecuted. In 1936 the reference to the Official Referee was terminated and the matter recalled 'to the Special Term, which or
Authority for the entry of judgment for unpaid temporary alimony and counsel fees is found in section 1171-b of the Civil Practice Act. “ Where the" husband, in an action for * * * separation, * * * makes default in paying any sum of money as required by the * * * order directing the payment thereof, the court may make an order directing the entry of judgment for the amount of such arrears, together with ten dollars costs and disbursements.” Here we have a husband, sued for a separation, who for almost six years completely ignored the order of the Supreme Court that he support his wife while she was compelled to support herself at labor far below her former style of living. Nor does his claim, of alleged fraud in connection with the marriage add to his stature. The plaintiff was entitled to be supported by him at least until she remarried and this record shows no good reason why such support should not have been provided. The defendant should not new be allowed to profit by his complete disregard of the orders of the court. As to the counsel fee, it is quite apparent that the plaintiff has been put to much unjustified expense and trouble and she should be permitted to collect the amount allowed. Plaintiff’s right
The application of the plaintiff to enter money judgment was timely. It was made before the action was dismissed and it is this application which is now before us.
The order of the Special Term should be modified so as to grant plaintiff’s motion for a money judgment for the arrears of alimony to the date of her remarriage, and the counsel fee, with ten dollars costs, and as so modified affirmed, with twenty-five dollars costs and disbursements to the plaintiff-appellant against the defendant. The judgment appealed from should be affirmed, without costs.
All concur.
Order of the Special Term modified so as to grant plaintiff’s motion for a money judgment for the arrears of alimony to the date of her remarriage, and the counsel fee, with ten dollars costs, and as so modified affirmed, with twenty-five dollars costs and disbursements to the plaintiff-appellant against the defendant.
Judgment appealed from affirmed, without costs.