Polley v. Polley

In a matrimonial action, the defendant husband appeals from so much of a resettled order of the Supreme Court, Westchester County, dated September 9, 1977, as awarded temporary alimony to the plaintiff wife in the amount of $500 per week, retroactive to June 17, 1977. Order reversed insofar as appealed from, without costs or disbursements, and motion for temporary alimony referred to the trial court for determination. In view of the photographic evidence in the record, which strongly indicates that plaintiff may have been guilty of adultery, Special Term improvidently exercised its discretion in granting an award of temporary alimony without first resolving the factual issues surrounding the photograph and the circumstances under which it was taken. This can best be accomplished at the trial where, if the trier of the facts credits the evidence. of the wife’s adultery, a retroactive award of temporary alimony will be barred (see Nobel v Nobel, 49 AD2d 850; see, also, Domestic Relations Law, § 236). If her explanation is credited, such an award may be made. Martuscello, J. P., Damiani, Suozzi, Gulotta and O’Connor, JJ., concur.