Contrubis v. Contrubis

¶1Order, Supreme Court, New York County, entered March 27, 1973, awarding $70 a week alimony to plaintiff wife in a separation action, unanimously affirmed, with costs, however, awarded to the plaintiff-appellant. Appellant shall recover of respondent $60 costs and disbursements of this appeal. The award was in accordance with the preseparation standard. (Hunter v. Hunter, 10 A D 2d 291, mot. for lv. to rearg. den. 10 A D 2d 937.) However, plaintiff offered proof that the standard had been artificially depressed by the husband in an attempt to rebuild the parties’ financial resources, and further, that he was currently in a position to provide a substantially higher standard of living. This evidence was improperly excluded. (Domestic Relations Law, § 236; Hessen v. Hessen, 33 N Y 2d 406, 411; Kover v. Kover, 29 N Y 2d 408, 415; Phillips v. Phillips, 1 A D 2d 393, 398, affd. N Y 2d 742.) In view of the fact that an action for divorce has been instituted by the husband with a counterclaim for divorce by the wife and a demand for reconsideration de novo of the support Order, there is no need to provide for a new hearing with respect to support in the separation action. (See Hunter v. Hunter, supra, p. 937.) An immediate trial is directed in the divorce action where there can be consideration of all relevant evidence to determine support. Concur—Nunez, J. P., Kupferman, Lupiano, Steuer and Lane, JJ.