Sweet v. Sweet

In an action brought by plaintiff for a judgment of separation upon the grounds of abandonment and nonsupport, or, in the alternative, for a judgment of support and maintenance for herself and the infant issue of the marriage (in the nature of a special proceeding) plaintiff appeals from a judgment of the Supreme Court, Suffolk County, entered October 5, 1973, which, after a hearing, dismissed the first and second causes of action for a judgment of separation-with prejudice; dismissed the third cause of action for support and maintenance, without prejudice to the right of plaintiff to institute a new proceeding should the circumstances then prevailing warrant same; and awarded plaintiff the sum of $1,750 as and for her counsel fees. Defendant cross-appealed from only that portion of the judgment as awarded plaintiff counsel fees. Judgment modified, on the law and the facts, by striking therefrom the second decretal paragraph and substituting a decree that defendant pay plaintiff the weekly sum of $125 for the support and maintenance of herself and children. As so modified, judgment affirmed, with costs to plaintiff. During the hearing, plaintiff elected to proceed solely upon the third cause of action in the nature of a special proceeding for support and maintenance. In our opinion, the proof established that defendant’s voluntary payments to plaintiff of $90 a week were inadequate and that she was entitled to the entry of judgment directing defendant to pay her the weekly sum of $125. We are further of the opinion that in view of the election not to proceed on the first two causes of action, the award of $1,750 represented the full, fair and reasonable value of the services rendered by plaintiff’s counsel. Hopkins, Acting P. J., Martuscello, Latham, Benjamin and Munder, JJ., concur.