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Spitalny v. Spitalny

New Jersey Superior Court, Appellate Division


Decided: April 19, 1949.

SYLVIA R. SPITALNY, PLAINTIFF-APPELLANT,
v.
MELVIN SPITALNY, DEFENDANT-RESPONDENT

On appeal from the Superior Court.

McGeehan, Donges and Colie.

Per Curiam

[3 NJSuper Page 77]

The plaintiff wife sought a decree in the former Court of Chancery for support and maintenance. Plaintiff and defendant were married in 1937 and a daughter was born, now eight years of age. In 1947 the defendant left the plaintiff and from the date of separation has paid her $45 a week until October, 1947. After final hearing, the court awarded plaintiff $60 a week from the date of the decree for the support and maintenance of herself and the daughter and a counsel fee to her attorney of $750. The plaintiff's appeal attacks the amount of the decree and alleges that it should have been retroactive from the date of separation. The defendant's appeal attacks the amount of the counsel fee.

A review of the testimony convinces us that the judgment awarding $60 a week was proper in view of the defendant's earnings. We see no reason to disturb the judgment in this respect. As to the award of $750 counsel fee, we point out that there had been a previous award of $150, that the husband had paid $45 a week up to the institution of proceedings by the wife, that the only question at issue was the quantum of the weekly allowance to be made, the unjustifiable separation having been admitted, and that under these circumstances the award of $750 should be reduced to $350. The judgment under appeal is modified in that respect and in all other respects affirmed.

19490419


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