Berlin v. Berlin

• Decision Date: 29 March 1971
• Citation: Berlin v. Berlin, 321 N.Y.S.2d 511, 36 A.D.2d 763 (N.Y. App. Div. 1971)
• Parties: Georgina BERLIN, Respondent, v. Milton BERLIN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 511

321 N.Y.S.2d 511

36 A.D.2d 763

Georgina BERLIN, Respondent, v. Milton BERLIN, Appellant.

Supreme Court, Appellate Division, Second Department.

March 29, 1971.

Gene Howard, Mineola, for plaintiff-respondent; Chales Marks, New York City, of counsel, on the brief.

Joseph D. Stim, Farmingdale, for defendant-appellant.

Before SAMUEL RABIN, P.J., and HOPKINS, MUNDER, MARTUSCELLO and LATHAM, JJ.

MEMORANDUM BY THE COURT.

In an action for divorce, defendant appeals from a judgment of the Supreme Court, Nassau County, dated December 2, 1970, which granted plaintiff a divorce on the ground of cruel and inhuman treatment and awarded her alimony, support for the parties' children, counsel fees and other relief.

Judgment modified, on the law and the facts, by striking therefrom all the decretal provisions except the first two decretal paragraphs, which granted plaintiff a divorce and custody of the parties' children, with visitation rights to defendant, and case remitted to the trial court, in the interests of justice, for a hearing and new determination on the issues of alimony, support for the children and counsel fees, and for entry of an amended judgment after rendition of such new determination. As so modified, judgment affirmed, without costs.

While courts have broad discretion to make such directions for support and maintenance, etc., as 'justice requires', they must always keep in mind 'the circumstances of the case and of the respective parties' (see Domestic Relations Law, §§ 236, 237, 240). This, is turn, requires the courts 'to consider not only the standard of living the parties enjoyed jointly during marriage, but the financial resources of each, considered separately * * *. There must be a nice but realistic balancing of the wife's needs and her independent means for meeting them with the husband's abilities to pay' (Phillips v. Phillips, 1 A.D.2d 393, 396, 150 N.Y.S.2d 646, 650, affd. 2 N.Y.2d 742, 157 N.Y.S.2d 378, 138 N.E.2d 738). At bar, in our opinion, the proof was insufficient upon which to base findings as to the Needs of plaintiff and the children or as to defendant's salary and holdings (see Tedrow v. Tedrow, 35 A.D.2d 768). Plaintiff, at best, spoke in terms of approximations. She was unable to be specific about most items. This was understandable: the parties continued to live together in their marital residence during the proceedins, with defendant, as was his wont, paying all the expenses of maintaining the premises...