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JESSIE SHAY v. SIDNEY S. SHAY (10/28/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


October 28, 1968

JESSIE SHAY, RESPONDENT,
v.
SIDNEY S. SHAY, ALSO KNOWN AS SIDNEY HANDLER, APPELLANT

In action for separation, the defendant husband appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Kings County, dated December 14, 1967, as awarded plaintiff alimony at the rate of $45 per week, commencing November 28, 1967. Judgment modified, on the law and the facts, by reducing the award of alimony to $30 per week.

Brennan, Acting P. J., Rabin, Hopkins, Benjamin and Martuscello, JJ., concur.

In our opinion, upon the instant record, the award of alimony in the sum of $45 per week was excessive. Ordinarily the fixing of permanent alimony should be made on the consideration of the financial status of the parties, their prior standard of living, their age, health, interests and obligations, with due weight to be accorded to the parties' resources, if any, and the wife's ability to continue to work and earn money for her self-support (Phillips v. Phillips, 1 A.D.2d 393, 397, 398, affd. 2 N.Y.2d 742; Kane v. Kane, 10 A.D.2d 888; Domestic Relations Law ยง , 236). At bar, the parties limited their proof to their respective earnings. On that basis, placing the parties in a situation of economic parity, and in line with what was acceptable to plaintiff prior to the instant suit, plaintiff should have been awarded no more than $30 per week.

Disposition

 As so modified, judgment affirmed insofar as appealed from, without costs.

19681028

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