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FRIEDA DUBOYS v. SIDNEY DUBOYS (04/14/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


April 14, 1969

FRIEDA DUBOYS, RESPONDENT,
v.
SIDNEY DUBOYS, APPELLANT

In an action for separation, the defendant husband appeals from an order of the Supreme Court, Nassau County, dated August 9, 1968 which granted the plaintiff wife's motion, inter alia, for temporary alimony and for a counsel fee.

Christ, Acting P. J., Brennan, Rabin, Hopkins and Kleinfeld, JJ., concur.

Since it appears that defendant has continued to support and maintain plaintiff and their children in the same style and manner as he did before this action was instituted and that plaintiff has ample means of her own, there is no basis for a pendente lite award of alimony and counsel fees, for such allowances are based on a showing of necessity (Swinson v. Swinson, 29 A.D.2d 693; Friedman v. Friedman, 5 A.D.2d 864; cf. Glazer v. Glazer, 12 A.D.2d 936). Nor, in our opinion, does the record warrant exclusion of defendant from his own home (cf. Epstein v. Epstein, 29 A.D.2d 545). The parties' 20-year-old son boards at college and their daughter is a high school senior. In the circumstances, and in view of the foregoing, we deem an award of custody to be inappropriate (see, also, Le Henaff v. Le Henaff, 20 A.D.2d 569). The action should proceed to trial promptly. If warranted by the proof, the trial court may make an appropriate allowance nunc pro tunc as of the return day of the motion presently under review (Light v. Light, 29 A.D.2d 540). The decision on this appeal is without prejudice to any such determination.

Disposition

Order reversed, on the law and the facts, without costs, and motion denied, without prejudice to renewal should defendant, pending trial, cease to support and maintain plaintiff and their children as heretofore.

19690414

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