Sterlace v. Sterlace

• Decision Date: 13 July 1978
• Docket Number: No. 1,No. 2,1,2
• Citation: 406 N.Y.S.2d 934,63 A.D.2d 450
• Parties: Robert A. STERLACE, Appellant, v. Barbara A. STERLACE, Respondent. AppealRobert A. STERLACE, Appellant, v. Barbara A. STERLACE, Respondent. Appeal
• Court: New York Supreme Court — Appellate Division

Page 934

406 N.Y.S.2d 934

63 A.D.2d 450

Robert A. STERLACE, Appellant, v. Barbara A. STERLACE, Respondent. Appeal No. 1.

Robert A. STERLACE, Appellant, v. Barbara A. STERLACE, Respondent. Appeal No. 2.

Supreme Court, Appellate Division,Fourth Department.

July 13, 1978.

John Lloyd Egan, Buffalo, for appellant.

William B. Mahoney, Buffalo, for respondent.

Before MARSH, P. J., and MOULE, DILLON, DENMAN and SCHNEPP, JJ.

DILLON, Justice:

Both parties to this action seek a divorce on the ground that they have lived apart pursuant to a judgment of separation for a period of more than one year (Domestic Relations Law, § 170, subd. (5)). Plaintiff appeals from two intermediate orders, the first of which directed that he pay temporary alimony, child support and counsel fees; and another which conditioned a previously granted order of trial preference upon payment of arrearages which had accumulated under the temporary order.

The judgment of separation was entered in July, 1975 after trial, on a counterclaim interposed by the defendant in plaintiff's action for divorce. The judgment provided, inter alia, that the plaintiff pay alimony to the defendant in the sum of $300 per month for "one (1) year commencing July 1, 1975 and to terminate June 1, 1976", and support of $200 per month for the child of the marriage in the custody of the defendant. On an appeal taken by the defendant we found the award of alimony to be insufficient and we also determined that there was no basis in the record for its elimination in futuro. Our modification of the judgment, to the extent relevant here, increased the award of alimony to $395 per month and eliminated the one-year limitation (see Sterlace v. Sterlace, 52 A.D.2d 743, 382 N.Y.S.2d 191). We did not disturb that part of the judgment which directed child support.

This divorce action was instituted in July, 1976, less than four months after our modification of the separation decree. The defendant counterclaimed and moved for temporary alimony, child support and counsel fees. Although it appears that the plaintiff was then in full compliance with the alimony and support provisions of the separation decree, Special Term awarded alimony pendente lite in the sum of $604.46 per month; child support of $200 per month and directed plaintiff to pay a counsel fee of $1,500. Leave was granted to the defendant to apply for additional counsel fees at trial.

Plaintiff then moved for an order of trial preference (CPLR 3403; Domestic Relations Law, § 249). The affidavit of defendant's counsel in opposition to the motion asserted that the case was not ready for trial because the plaintiff had not complied with Special Term's temporary order during the few weeks of its existence. Nonetheless, the preference was granted by the Calendar Justice and the case was placed on the day calendar on October 1, 1976. In accordance with the calendar practice in Erie County, a pretrial conference was held before another Calendar Justice in January, 1977. Defendant's counsel again argued that plaintiff was in default of the temporary order and that the matter should not proceed to trial until the default was cured. The Calendar Justice directed that the case be placed upon the ready day calendar for immediate trial but conditioned the order "upon the payment by the plaintiff * * * of the * * * alleged arrearage * * * in the sum of $1,256.70 and the payment of the attorney fees of $1,500.00".

It is significant to both appeals that except in the most compelling circumstances "parties to a matrimonial action should not waste their assets and the court's time seeking review of an order for temporary alimony." (Kunerth v. Kunerth, 58 A.D.2d 1010, 397 N.Y.S.2d 39; Vesper v. Vesper, 46 A.D.2d 729, 359 N.Y.S.2d 1009; Schoellkopf v. Schoellkopf, 41 A.D.2d 599, 340 N.Y.S.2d 348; Gelow v. Gelow, 41 A.D.2d 556, 339 N.Y.S.2d 781.) Thus an early trial is to be preferred to appeals from intermediate orders in matrimonial matters (Kunerth v. Kunerth,supra; Connin v. Connin, 55 A.D.2d 1052). Plaintiff sought such relief in moving for an order of preference almost immediately following the award of temporary alimony which was substantially in excess of the final award in the separation decree as modified by this court.

It is within the court's discretion, provided that "justice so requires", to grant a motion for trial preference in a matrimonial action (Domestic Relations Law, § 249, supra ). When the motion was initially presented to the Calendar Justice, the issue of plaintiff's noncompliance with the temporary order was raised by the defendant and rejected by the court in granting the motion. The subsequent order of another Calendar Justice, conditioning immediate trial upon plaintiff's full compliance with the temporary order, was improper and has unnecessarily delayed the trial of this action for more than a year and a half. "It is fundamental that a judge may not review or overrule an order of another judge of coordinate jurisdiction in the same action or proceeding" (Wright v. County of Monroe, 45 A.D.2d 932, 357 N.Y.S.2d 330; see Belski v. New York Cent. R. R., 38 A.D.2d 882, 329 N.Y.S.2d 345; CPLR 2221).

The more substantive question before us, however, concerns the power of Special Term to award temporary alimony and child support in a divorce action brought subsequent to the entry of a separation decree which fixed permanent alimony. Given that progression of events, we hold that the court is without authority to award temporary relief.

Judicial precedent compels that result, notwithstanding defendant's reliance on Kover v. Kover, 29 N.Y.2d 408, 328 N.Y.S.2d 641, 278 N.E.2d 886. True, Kover stands for the rule that where divorce follows separation the court is not bound by the prior alimony award but "is privileged to consider the question of alimony de novo " (p. 413, 328 N.Y.S.2d p. 643, 278 N.E.2d p. 887). As noted in Kover, however, its holding was based upon principles theretofore enunciated in Plancher v. Plancher, 35 A.D.2d 417, 422, 317 N.Y.S.2d 140, 144, affd. 29 N.Y.2d 880, 328 N.Y.S.2d 444, 278 N.E.2d 650; Bishop v. Bishop, 15 A.D.2d 494, 495, 222 N.Y.S.2d 232, 233; Goshin v. Goshin, 281 App.Div. 979, 120 N.Y.S.2d 596 and Hedaya v. Hedaya, 68 Misc.2d 165, 327 N.Y.S.2d 720.

In Plancher, the Appellate Division, relying upon Bishop, found that upon the granting of a divorce in the subsequent action, new alimony may be provided "(a)s an incident to the judgment" (35 A.D.2d 417, 422, 317 N.Y.S.2d 140, 145). And in Bishop, the court recognized the power of "the Trial Judge in the divorce action * * * to award amounts for support which are different from the amounts specified in the separation decree" (15 A.D.2d 494, 495, 222 N.Y.S.2d 232, 233, emphasis supplied). Goshin and Hedaya stand as further authority that the Trial Judge may exercise such power in directing final judgment.

More recently, the rule has been further entrenched by precedent (see e. g., Weisberger v. Weisberger, 57 A.D.2d 535, 394 N.Y.S.2d 1; Bottner...