Altman v. Altman

• Citation: 518 N.Y.S.2d 763,136 Misc.2d 320
• Parties: Esther ALTMAN, Plaintiff, v. Joseph ALTMAN, Defendant.
• Decision Date: 11 August 1987
• Court: United States State Supreme Court (New York)

Page 763

518 N.Y.S.2d 763

136 Misc.2d 320

Esther ALTMAN, Plaintiff, v. Joseph ALTMAN, Defendant.

Supreme Court, Trial Term Kings County, Part 5A.

Aug. 11, 1987.

D'Addario & Kurtz by Richard Kurtz, New York City, for plaintiff.

Stein & Garr by Ira E. Garr, New York City, for defendant.

MARTIN SCHNEIER, Justice.

Should the wife prevail in her action against the husband for reimbursement of monies expended for necessaries for herself and the children where her income is nearly equal to that of the husband? This issue is apparently one of first impression in this State.

The plaintiff wife, Esther Altman, on May 1, 1985, commenced this action for a money judgment in the total sum of $106,830 for necessaries and for a divorce.

The defendant husband, Joseph Altman, in his answer, denies the allegations in the complaint and interposes a counterclaim for divorce.

In open court, pursuant to oral agreement, plaintiff took an inquest against defendant in her divorce action, custody was awarded to plaintiff, and defendant was granted visitation. In addition, pursuant to oral agreement, plaintiff purchased defendant's interest in the marital house and defendant received $74,153, net.

A trial was held on the action for necessaries and the ancillary economic issues, at which time both the plaintiff and the defendant and other witnesses testified.

By a fair preponderance of all the credible evidence, the court makes the following findings of fact and conclusions of law:

FINDINGS OF FACT

The parties were married on August 6, 1972, in Brooklyn, New York. Plaintiff is 33 years old and defendant is 41 years old.

There are two issue of the marriage, namely; Eric, born November 8, 1975, and Jordan, born January 16, 1979. The infant issue reside with the plaintiff at the former marital residence.

Plaintiff is a licensed pharmacist who works for the Maimonides Medical Center as an administrator at a gross salary of approximately $45,500 per year or net biweekly $1,204.60. Defendant is an engineer for the New York City Health and Hospitals Corporation at a gross salary of approximately $51,000 per year or net biweekly $1,226.82.

Soon after the marriage, the parties deposited their respective earnings into a joint checking account which was used to pay all the family expenses. This arrangement continued until September 1983 when the parties agreed to maintain their own checking accounts and to pay all personal and family expenses with their own funds. At the end of each month the parties did an accounting reconciliation and reimbursement of monies, to insure that the household expenses were shared equally between them. This procedure was followed by the parties from September 1983 to November 1985 when defendant permanently moved out of the marital residence pursuant to a Criminal Court order of protection. The plaintiff testified that from November 19, 1985 to January 20, 1987, she expended a total sum of $69,877 for household expenses and necessaries, and that $57,523 of said sum was expended on behalf of the children. During this period plaintiff had to sell her jewelry to help pay expenses.

It is uncontroverted that from November 1985 to January 20, 1987, defendant paid nine mortgage payments on the marital premises in the sum of $600 each and paid six private school tuition payments for the parties' son, Eric, in the sum of $295 each.

Since both parties were born and raised in Israel, they agreed that their children should have a Hebrew education and be conversant in Hebrew, particularly since Hebrew was the principle conversational language of the children's grandparents. The parties, therefore, enrolled their children in the Yeshiva of Flatbush, a bilingual private school, and voluntarily contributed equally toward the payment of the tuition and other school related expenses.

CONCLUSIONS OF LAW

Prior to the enactment of the neutral gender support statutes in the last decade, the common law action by the wife for reimbursement of expenditures for necessaries was based on the theory that the husband had the primary obligation of support, (see i.e., DeBrauwere v. DeBrauwere, 203 N.Y. 460, 96 N.E.2d 722 [1911]; State of New York v. Reiss, 127 A.D.2d 910, 512 N.Y.S.2d 648 [3d Dept.1987] ). The husband was obligated to provide his wife and children with basic necessaries under the circumstances of the parties' economic status, income, mode of living and station in life, (see i.e., Garlock v. Garlock, 279 N.Y. 337, 18 N.E.2d 521 [1939]; Wickstrom v. Peck, 163 App.Div. 608, 148 N.Y.S. 596 [1st Dept.1914] ).

The question of what constitutes necessaries is to a great extent a question of fact relative to the circumstances of the parties, (see DeBauwere v. DeBrauwere, supra; Grishaver v. Grishaver, 225 N.Y.S.2d 924 [Sup.Ct., N.Y. Co., 1961] ). In addition to food, shelter, and clothing, necessaries may include telephone, gas, electric charges, gratuities, medical expenses, private school, and psychiatric services, (see, Holtzman v. Stutz, 125 A.D.2d 640, 510 N.Y.S.2d 10 [2d Dept., 1986]; Tausik v. Tausik, 38 Misc.2d 11, 235 N.Y.S.2d 776 [Sup.Ct., N.Y. Co., 1962]; New York Telephone Company v. Teichner, 69 Misc.2d 135, 329 N.Y.S.2d 689 [District Ct., Suffolk Co., 1972]; McFadden v. McFadden, 173 Misc. 85, 17 N.Y.S.2d 118 [Sup.Ct., N.Y. Co., 1939] reversed on other grounds, 263 A.D. 944, 33 N.Y.S.2d 815).

In 1980, Domestic Relations Law § 32, and Family Court Act §§ 412 and 413 were amended to reflect a neutral gender obligation to support a spouse and/or children based upon the relative financial circumstances of the parties obligated to provide support, (see McKinney's Session Laws of 1980, Chapter 281). The husband was no longer the primary person obligated to support his wife and children. Under the statutes as amended, although the husband was still...