Crute v. Crute , 34 A.D.2d 823 ( 1970 )

In an action in which plaintiff was granted a judgment of separation on November 7, 1951, she appeals from two orders of the Supreme Court, Westchester County, as follows: (1) as limited by her brief, from so much of an order dated May 2, 1969 as, upon a cross motion by defendant, reduced the amount of alimony awarded plaintiff in the judgment from $45 a week to $15 a week; and (2) from an order dated November 10, 1969 which denied plaintiff’s subsequent motion to compel defendant to pay plaintiff’s counsel fee and printing expenses upon her appeal to this court from the order of May 2, 1969. Order dated May 2,1969 modified, on the law and the facts and in the exercise of discretion, by striking from the second decretal paragraph thereof the figure “ $15.00 ” and substituting therefor the figure “$30”. As so modified, order affirmed insofar as appealed from. Order dated November 10, 1969 reversed, on the law and the facts, and in the exercise of discretion, and plaintiff’s motion granted to the extent that defendant is directed to pay her $200 for her counsel fee upon her appeal from the order of May 2, 1969. Payment thereof shall be made within 10 days after service upon defendant of a copy of the order hereon with notice of entry. Plaintiff is awarded $20 costs and disbursements, to cover both appeals. In our opinion, defendant demonstrated an adequate change of circumstances to permit the discretionary reduction of alimony. However, the record reveals that neither plaintiff nor defendant will incur future expense for medicines, in view of their coverage by Medicare, and that plaintiff’s expenses without any allowance for entertainment or miscellaneous expenses are not even offset by her income as testified to in the record, including the reduced alimony payments as herein modified. Accordingly, we feel that it was an improvident exercise of discretion to reduce the payments to $15 per week and that the record more properly justifies a reduction to $30 per week. We are also of the opinion that it was an improvident exercise of discretion by the Special Term to deny plaintiff an award for her counsel fee for prosecution of her appeal from the order which reduced the alimony. Munder, Acting P. J., Martuseello, Latham, Kleinfeld and Benjamin, JJ., concur.