Biven v. Biven

Judgment unanimously affirmed, without costs. Memorandum: We find substantial support in the record for Trial Term’s award to plaintiff wife in this divorce action of $100 per week alimony, exclusive possession of the marital residence, judgment for the arrearages of temporary alimony in the amount of $2,000, and counsel fees of $1,500 plus $48 disbursements. It is plaintiff’s responsibility to pay for all of the carrying costs including the mortgage in connection with the marital home. In affirming the award of exclusive possession, we note that at present there are still two children living at home. Thus, the case is distinguishable from Sharer v Sharer (60 AD2d 780) and Kahn v Kahn (55 AD2d 638). Defendant’s alleged noncompliance with the prior orders directing that he pay temporary alimony, holding him in contempt for nonpayment, and providing that he pay the arrears of $2,350.98 at the rate of $25 per week was at issue in the trial. The prior orders are superseded by the decree after trial which grants judgment in the amount of $2,000 for such arrearages and which we affirm. The appeals from such prior orders, therefore, should be dismissed as moot. (Cf. Math v Math, 39 AD2d 583, affd 31 NY2d 693.) (Appeal from judgment of Onondaga Supreme Court—divorce.) Present—Marsh, P. J., Dillon, Hancock, Jr., Denman and Witmer, JJ.