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MARIA A. SANTALLA v. EUSEBIO SANTALLA (05/22/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT


May 22, 1969

MARIA A. SANTALLA, RESPONDENT,
v.
EUSEBIO SANTALLA, APPELLANT

Concur -- Stevens, P. J., Eager, Tilzer, McGivern and Steuer, JJ.

Since the parties were married on September 6, 1946, and thus the marriage did have stability, the plaintiff wife seems to have reasonable grounds, prima facie, and subject to proof, warranting temporary alimony. However, she has demonstrated earning capacity and it is also reasonable to assume this will continue, in the absence of illness or accident. The pendente lite allowance of $80 per week seems to us to more accord with the realities, considering the husband's effort to support also the couple's teen-age daughter, still in school; the allowance is of course, subject to re-examination and revision at the plenary trial. And further, in view of the fact, plaintiff was concededly gainfully employed at a salary of $8,000 per year until December 20, 1968, the husband should not be held responsible for her complete support prior to that date.

Disposition

Order entered February 19, 1969, awarding temporary alimony in the sum of $125 per week, commencing from November 25, 1968, together with counsel fees in the sum of $1,000, unanimously modified on the facts and in the exercise of discretion, to the extent of reducing alimony to the sum of $80 per week, commencing December 20, 1968, and otherwise affirmed, without costs or disbursements.

19690522

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