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Matter of Klein v. Klein

Appellate Division of the Supreme Court of New York, Second Department
Jul 5, 1977
58 A.D.2d 811 (N.Y. App. Div. 1977)

Summary

In Matter of Klein v Klein (58 A.D.2d 811 [2d Dept 1977]), the father's obligation for support had been reduced on appeal, after which he sought restitution.

Summary of this case from Bryant v. Bryant

Opinion

July 5, 1977


In a support proceeding pursuant to article 4 of the Family Court Act, petitioner appeals from an order of the Family Court, Kings County, dated January 21, 1977, which, inter alia, awarded a counsel fee for services rendered to respondent's attorney on a prior appeal and denied petitioner's cross motion to vacate a payroll deduction order. Order modified, on the law and the facts, by reducing the amount of the payroll deduction to the sum of $50 per week. As so modified, order affirmed, without costs or disbursements. The petitioner was not entitled to restitution or recoupment of alimony payments made. "It has been so held in respect of alimony pendente lite (Surut v. Surut, 191 App. Div. 570), and in respect of permanent alimony (Griffin v. Griffin, 219 App. Div. 370; see, also, 27 C.J.S., Divorce, § 215)." (Haas v Haas, 271 App. Div. 107, 109.) The payroll deduction order should be reduced, however, to reflect this court's reduction of support to $50 per week (see Matter of Klein v Klein, 54 A.D.2d 908). It is also alleged by the petitioner that section 438 FCT of the Family Court Act is unconstitutional. Since the petitioner made no request for counsel fees, nor was any such request denied, it is apparent that he lacks standing to raise this issue (see 8 N.Y. Jur, Constitutional Law, §§ 50-52). The award of counsel fees was properly made under that statute. Latham, J.P., Rabin, Titone and O'Connor, JJ., concur.


Summaries of

Matter of Klein v. Klein

Appellate Division of the Supreme Court of New York, Second Department
Jul 5, 1977
58 A.D.2d 811 (N.Y. App. Div. 1977)

In Matter of Klein v Klein (58 A.D.2d 811 [2d Dept 1977]), the father's obligation for support had been reduced on appeal, after which he sought restitution.

Summary of this case from Bryant v. Bryant
Case details for

Matter of Klein v. Klein

Case Details

Full title:In the Matter of S. WILLIAM KLEIN, Appellant, v. FRANCES KLEIN, Respondent

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jul 5, 1977

Citations

58 A.D.2d 811 (N.Y. App. Div. 1977)

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