Braiman
v.
Braiman

Appellate Division of the Supreme Court of New York, Fourth DepartmentDec 12, 1974
46 A.D.2d 1011 (N.Y. App. Div. 1974)

December 12, 1974

Present — Marsh, P.J., Witmer, Cardamone, Simons and Goldman, JJ.


Motion for a stay denied; and despite the pending appeal, the parties are directed to proceed in Supreme Court, Monroe County, which shall grant a preference and fix an early date for trial of the action. Memorandum: This divorce action should have been tried and a final decree entered therein months ago. As we have stated on many occasions, excessive litigation in preliminary skirmishes is wasteful of court time and unduly expensive to the parties. Temporary alimony proceedings should not be permitted to overshadow the basic action, and appeals from orders for temporary alimony are discouraged. The best remedy from such an order is an early trial of the action ( Schoellkopf v. Schoellkopf, 41 A.D.2d 599; De Gasper v. De Gasper, 31 A.D.2d 886). The principle of law relied upon by defendant-appellant, that alimony may not be increased without a showing of changed circumstances, applies with respect to orders for permanent alimony. Traditionally, temporary alimony is fixed in the discretion of the court upon the moving papers, without testimony; and in the absence of agreement the amount fixed should not be determinative of the amount of the permanent alimony ultimately fixed in the divorce decree ( De Gasper v. De Gasper, supra; Schine v. Schine, 28 A.D.2d 976).