Brown v. Brown , 311 N.Y.S.2d 467 ( 1970 )

Judgment unanimously modified, on the law and the facts to limit the retroactivity of the award of $325 weekly insofar as it exceeds the temporary weekly alimony of $250, so that the same shall commence and be paid retroactively from May 7, 1968 rather than from February 15, 1966 when temporary alimony commenced, and judgment otherwise affirmed, without costs and without disbursements. Although it is within the power of the trial court to provide that permanent alimony and child support payments shall be paid from the commencement of an action for divorce or separation (Forrest v. Forrest, 25 1ST. Y. 501; Burr v. Burr, 10 Paige ch. 20; Lowe v. Lowe, 28 A D 2d 212, affd. 21 N Y 2d 965), we conclude that, in the circumstances of this case, it was an improvident exercise of discretion for the trial court to provide for retroactivity of the award from a date prior to the date of entry of the interlocutory decree of divorce. Concur — Stevens, P. J., Eager, McGivern, Markewich and Nunez, JJ.