Lowe v. Lowe

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before STEVENS; TILZER; All concur except EAGER and McNALLY, JJ., who dissent in an opinion by McNALLY; McNALLY; EAGER
• Citation: Lowe v. Lowe, 28 A.D.2d 212, 284 N.Y.S.2d 227 (N.Y. App. Div. 1967)
• Decision Date: 31 October 1967
• Parties: Miriam LOWE, Plaintiff-Respondent-Appellant, v. Edwin S. LOWE, Defendant-Appellant-Respondent.

Page 227

284 N.Y.S.2d 227

28 A.D.2d 212

Miriam LOWE, Plaintiff-Respondent-Appellant, v. Edwin S. LOWE, Defendant-Appellant-Respondent.

Supreme Court, Appellate Division, First Department.

Oct. 31, 1967.

Irving I. Erdheim, New York City, of counsel (Leonard C. Shalleck and Robert Tlumak, New York City, with him on the brief; Erdheim & Armstrong & Shalleck, New York City, attorneys), for defendant-appellant-respondent.

Roy M. Cohn, New York City, of counsel (Robert S. Cohen, New York City, with him on the brief; Saxe, Bacon & Bolan, New York City, attorneys), for plaintiff-respondent-appellant.

Before STEVENS, J.P., and EAGER, CAPOZZOLI, TILZER and McNALLY, JJ.

TILZER, Justice:

Defendant appeals from a judgment of the Supreme Court in favor of the plaintiff entered May 18, 1967 in New York County, upon a decision of the court at a Special and Trial Term, without a jury, decreeing that the plaintiff be separated from the defendant and that defendant pay for support and maintenance the sum of $600 per week commencing September 26, 1966 and a counsel fee of $8,000. Plaintiff cross-appeals from that part of the judgment which denied her $1,100 per week in permanent alimony and awarded her only $8,000 as counsel fees, and which failed to make plaintiff's support retroactive to the commencement of the action.

We all approve of the conclusion of the trial court that the plaintiff is entitled to a judgment of separation. We differ as to the amount of alimony and its effective date and as to the sum awarded for counsel fees. It is our view that the record fully supports the trial court's findings 'That the defendant is a man of substantial wealth and income having an estate in excess of 3 million dollars and a net taxable income in excess of $100,000.00 per year, and is capable to paying alimony in the amount of $600.00 per week' and 'The alimony is fully taxable to the plaintiff and fully tax deductible to the defendant.' The alimony awarded in the circumstances effected justice between the parties, the trial court balancing the defendant's substantial wealth against the plaintiff's $119,000 in cash and securities (held by her in July, 1966 when the action was initiated and necessarily reduced pending the trial), the plaintiff's age, the fact that the parties were first married in 1953, were divorced in 1959, and remarried in 1960, and the parties' standard of living. The counsel fees allowed, too, cannot be said to be excessive, in the light of the standing of counsel, the complexity of the matter, the effort required, the number of hours expended and the result achieved.

Considering the chronology of the action as well as the conduct of the defendant, the retroactivity of the alimony award, not to the date of the commencement of the action, but to the date of the granting of a trial preference, was not an abuse of discretion. The determination or modification of temporary alimony, in unusual circumstances, may be postponed until the trial. In Barnes v. Barnes, 3 A.D.2d 242, 159 N.Y.S.2d 987, it was held that there was no occasion to provide that the award of temporary alimony be subject to a retroactive increase by the trial court. An award of...