67 A.D.2d 681 (1979)

Rita Schwartz, Respondent, v. Samuel R. Schwartz, Appellant

Appellate Division of the Supreme Court of the State of New York, Second Department.

January 15, 1979

Order affirmed insofar as appealed from, with $50 costs and disbursements.

For the reasons stated in the opinion of Mr. Justice Gibbons at Special Term, we are in agreement with his interpretation of the stipulation of settlement and the modification of the award of alimony. Furthermore, under the circumstances of this record, the award of counsel fees to the wife and the denial of counsel fees to the husband were proper. Accordingly, we need not reach the issue of the constitutionality of sections 237 and 238 of the Domestic Relations Law (cf. Thaler v Thaler, 58 A.D.2d 890). Special Term's failure to draw an inference favorable to the husband upon the wife's untimely filing of the official form financial affidavit was not an improvident exercise of discretion (see 22 NYCRR 699.11).


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