SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
November 7, 1968
JUDITH A. BROWN, RESPONDENT-APPELLANT,
BARRY K. BROWN, APPELLANT-RESPONDENT
Concur -- Stevens, J. P., Steuer, Tilzer, Rabin and McNally, JJ.
Interlocutory judgment, dated May 7, 1968, in favor of plaintiff in this matrimonial action, unanimously modified, on the law and the facts, without costs or disbursements, by striking therefrom the provisions respecting custody, alimony and counsel fees and remanding the cause for an immediate trial by Trial Term, limited to the issues of custody, counsel fee and permanent alimony based on the preseparation standard of living of the parties. (Brownstein v. Brownstein, 25 A.D.2d 205, 208; Hearst v. Hearst, 3 A.D.2d 706
, affd. 3 N.Y.2d 967.) There is insufficient proof in the record to base findings on the issues of permanent alimony and counsel fee and there is no proof on which to base custody. In fact, the trial court in effect foreclosed proof on the question of custody. The temporary alimony heretofore granted is ordered continued. In determining the amount of permanent alimony, the Trial Judge is not bound thereby but shall be guided solely by the evidence.
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