Heatherley v. Heatherley ( 1953 )

Judgment insofar as appealed from modified on the facts and as a matter of discretion by increasing the alimony from $15 per week to $25 per week and as so modified affirmed, with costs to appellant. Memorandum: Upon this record, we are of the opinion that the amount awarded to the plaintiff is insufficient. The judgment should be modified to provide for alimony to the plaintiff of $25 per week. The awarding of custody of the son to the defendant in an action for divorce is unusual. We feel, however, that the judgment in this respect should not be disturbed under the circumstances presented. The action was tried two years ago at a time when the son was thirteen years of age. Also, since the trial of the action, it has been made known to this court without objection that the defendant has married the correspondent without the State of New York. In view of the lapse of two years since the ease was tried, we think that it would be in the interest 'of justice to both parties that the question of custody be determined in the light of present conditions upon application of the plaintiff if she be so advised. All concur. (Appeal by plaintiff from part of a judgment granting plaintiff an absolute divorce, awarding custody of the infant son of the parties to defendant, and awarding plaintiff alimony.) Present — McCurn, P. J., Vaughan, Kimball, Piper and Wheeler, JJ.