Samuelsen v. Samuelsen
| Decision Date | 10 November 1986 |
| Citation | 508 N.Y.S.2d 36,124 A.D.2d 650 |
| Parties | Deirdre SAMUELSEN, Respondent, v. Richard SAMUELSEN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Roberts & Roberts, New York City (Michael J. Roberts, of counsel), for appellant.
Philip J. Fitzpatrick, Staten Island (Bruce G. Behrins & Associates, of counsel), for respondent.
Before BROWN, J.P., and WEINSTEIN, RUBIN and KOOPER, JJ.
MEMORANDUM BY THE COURT.
In a matrimonial action, the defendant husband appeals, (1) as limited by his brief, from so much of an order of the Supreme Court, Richmond County (Felig, J.), dated January 31, 1984, as awarded the plaintiff wife pendente lite support and maintenance of $400 per week and granted his cross motion for custody of the children only to the extent of awarding visitation; (2) from a judgment of the same court (McBrien, J.), dated November 21, 1984, which granted the plaintiff wife a divorce based on cruel and inhuman treatment of her by him, awarded her custody of the three children of the marriage, and distributed the marital assets, and (3) from an order of the same court (McBrien, J.), dated February 27, 1985, which adjudged the defendant husband guilty of contempt and ordered that he be jailed until he paid a fee to a court-appointed appraiser.
ORDERED that the order dated February 27, 1985, is reversed, on the law, without costs or disbursements.
The appeal from the intermediate order dated January 31, 1984, has been dismissed, since the right to separately appeal therefrom was extinguished upon the entry of the judgment, dated November 21, 1984 (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). This order is also not reviewable pursuant to CPLR 5501 since, if it were reversed or modified, it would not affect the foundation of the judgment of divorce, or render the judgment and the trial of the action invalid and without support (see, Caplin v. Caplin, 33 A.D.2d 908, 307 N.Y.S.2d 486). We note that, in any event, the proper remedy for an inequitable pendente lite order of maintenance and support is, ordinarily, a speedy trial (see, Zoda v. Zoda, 121 A.D.2d 380, 503 N.Y.S.2d 90; Rossman v. Rossman, 91 A.D.2d 1036, 458 N.Y.S.2d 631). In this case, the defendant husband was afforded a speedy trial inasmuch as the trial commenced 34 days after the date of the pendente lite order.
Approximately 20 days after the parties had rested and the trial evidence had been presented, the Trial Judge contacted the...
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