Terner v. Terner , 350 N.Y.S.2d 733 ( 1973 )

Appeal by defendant from a judgment of the Supreme Court, Westchester County, dated May 24, 1973, which (1) granted plaintiff a divorce on the ground of cruel and inhuman treatment, (2) dismissed defendant’s three counterclaims, which were for divorce on the respective grounds of (a) constructive abandonment, (b) cruel and inhuman treatment and (e) adultery, (3) granted plaintiff exclusive possession of the marital residence, (4) directed defendant to pay alimony and child support of $300 a week, (5) directed defendant to pay the expenses of the marital home, including the mortgage, (6) directed defendant to pay a counsel fee of $15,000 to plaintiff’s attorneys and (7) directed that the issues of additional alimony, support and counsel fees and of child custody be heard at a future date. Judgment modified, on the law, by striking the sixth and eighth decretal paragraphs thereof, which relate, respectively, to alimony and child support and to the counsel fee, and by amending the ninth decretal paragraph thereof so that the same shall read as follows: “Ordered, Adjudged and Decreed that the issues of alimony, child support and counsel fees, and all questions with respect to the custody and visitations with and to the infant son of the parties, Andrew Lee Temer, be heard forthwith at a Special Term, Part V of this Court; and it is further”. As so modified, judgment affirmed, without costs. In our opinion, the learned Trial Justice properly noted in his decision that the record was devoid of any testimony concerning the financial resources of the parties. The fixation of amounts for alimony, child support and counsel fees should, therefore, await the development of proof to be adduced at an early hearing. Munder, Acting P. J., Martuscello, Shapiro, Brennan and Benjamin, JJ., concur.