Donnelly v. Donnelly

Appeal dismissed, as moot, without costs or disbursements from so much of the judgment, Supreme Court, New York County, entered January 27, 1977, as dismissed plaintiff-appellant’s cause of action seeking a sale of the marital real property and as awarded, in part, child support payments represented by one half the monthly mortgage payments on that property for the period following such sale. In other respects, the judgment, to the extent appealed from, which directed plaintiff-appellant to pay $120 weekly child support, $263.80 monthly, being one half the monthly mortgage payments, "as additional payments for the children’s support”, together with a counsel fee of $4,500, unanimously modified, on the facts, without costs and disbursements, to reduce the award of counsel fees to $2,500 inclusive of services on this appeal, and otherwise affirmed. The marital premises have now been sold and we, therefore, dismiss as moot the appeal from the failure of the judgment to direct the sale of those premises and the direction awarding half the mortgage payments as child support from the time of the sale forward. The counsel fee awarded is found excessive in relation both to the time expended on this brief trial and appeal and to the defendant-respondent’s ability to contribute to the payment of her own fees. An action for divorce commenced by the defendant here, in which she seeks both alimony and child support, is now pending in Queens County. While we *882have affirmed the child support awarded here, we expressly recognize the right of the Queens court to determine child support on the evidence before it. Concur—Kupferman, J. P., Lupiano, Silverman and Lynch, JJ.