Brownstein v. Brownstein

Citation268 N.Y.S.2d 115,25 A.D.2d 205
PartiesCarol N. BROWNSTEIN, Plaintiff-Respondent, v. Edward J. BROWNSTEIN, Defendant-Appellant.
Decision Date29 March 1966
CourtNew York Supreme Court Appellate Division

Louis Spivack, New York City, of counsel (Spivack, Schutzer & Mohr, New York City, attorneys), for appellant.

Richard A. Krauss, New York City, of counsel (Sydney O. Perlman, New York City, attorney), for respondent.


EAGER, Justice.

This action, which was brought by plaintiff wife for an absolute divorce, was dismissed by the trial court at the close of her case 'for failure of proof with respect to the allegations of the complaint charging adultery'. The trial court then denied plaintiff's motion to amend the pleadings to allege a cause of action for separation but held that he would 'consider the case as one requiring an award of alimony in the case of an unsuccessful plaintiff who doesn't prove her case.' Eventually, the court rendered judgment dismissing plaintiff's complaint; but, in addition to certain provisions for support, maintenance and education of the children, the judgment awarded $3500 annual alimony to plaintiff; directed that the defendant pay plaintiff $2406.21 'as reimbursement for necessaries' and that he pay the outstanding bills of $1875 to a psychiatrist and of $465 to a household maid for services rendered; and further decreed that the defendant should pay $1500 counsel fees. The defendant appeals from the judgment insofar as it provides for the payments for the benefit of the wife.

Upon the enactment of Domestic Relations Law (§ 236), there was newly conferred upon the Supreme Court the power to require a husband to provide for the support of a wife who loses her matrimonial action. (See Insetta v. Insetta, 20 A.D.2d 544, 245 N.Y.S.2d 133.) Specifically, the statute provides that a direction that a husband provide suitably for the support of his wife 'may be made * * * notwithstanding that the court refuses to grant the relief requested by the wife * * * by reason of a failure of proof of the grounds of the wife's action * * *.' (Domestic Relations Law, supra.) Obviously, this provision was enacted as a means, in a proper case, of enforcing the general obligation of a husband to support his wife. With the parties before the court and with a proper opportunity to inquire into the circumstances, there is no need to remit the wife to the necessity of further litigation in the Family Court or elsewhere to procure needed or proper support.

Where a matrimonial action between validly married spouses is dismissed without affirmative relief to either party, they generally remain subject to their respective marital obligations. Each may be bound to cooperate toward a reconciliation and a resumption of the marital relationship. (See Bohmert v. Bohmert, 241 N.Y. 446, 454, 150 N.E. 511, 513; Davidoff v. Davidoff, 284 App.Div. 872, 134 N.Y.S.2d 201; Walker v. Walker, 282 App.Div. 671, 122 N.Y.S.2d 209; Edwards v. Edwards, 281 App.Div. 868, 869, 119 N.Y.S.2d 607, 608.) In any event, notwithstanding the separation of the parties and as long as the marriage relationship stands, unabridged by court decree or valid agreement between the parties, the husband continues under the obligation to support his wife. Her right affirmatively to seek support from him is precluded generally as a matter of law only when her conduct has been or is such as to entitle him to a decree of separation or to a divorce. (See People v. Schenkel, 258 N.Y. 224, 228, 179 N.E. 474, 476; Tirrell v. Tirrell, 232 N.Y. 224, 229, 133 N.E. 569, 570; Insetta v. Insetta, supra; St. Germain v. St. Germain, 23 A.D.2d 763, 258 N.Y.S.2d 594, affd. 16 N.Y.2d 764, 262 N.Y.S.2d 492, 209 N.E.2d 813; Olmstead v. Olmstead, 24 A.D.2d 605, 262 N.Y.S.2d 375; Rosenstiel v. Rosenstiel, 20 A.D.2d 71, 76, 77, 245 N.Y.S.2d 395, 400, 402; Cipriani v. Cipriani, 45 Misc.2d 500, 257 N.Y.S.2d 197; Kurtis v. De Siervo, 46 Misc.2d 1014, 1016, 261 N.Y.S.2d 679, 681.)

The statutory direction is that the husband's obligation to provide suitably for his wife's support shall be implemented 'as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties.' (Domestic Relations Law, supra.) The phrase 'as justice requires', has been utilized for many years in statutes as a guide for directions in connection with domestic relations problems or litigation. (See Vanderbilt v. Vanderbilt, 1 N.Y.2d 342, 353, 153 N.Y.S.2d 1, 9, 135 N.E.2d 553, 558, affd. 354 U.S. 416, 77 S.Ct. 1260, 1 L.Ed.2d 1456.) The use of the phrase is clearly indicative of an intent to vest the court with a broad discretion, unfettered by "matter of law' requirements', so as to enable it to make such directions as are required in the interests of justice. (See Vanderbilt v. Vanderbilt, supra, 1 N.Y.2d 342, p. 353, 153 N.Y.S.2d 1, p. 9, 135 N.E.2d 553, p. 558.) '(W)ithin the undefinable legal limits this side of an 'abuse' (of discretion), the court's hands are free.' (Practice Commentary by David D. Siegel, Domestic Relations Law, § 236, p. 136.)

The statute represented 'indeed a broad grant of discretionary power, and it was so intended by the Legislature'. (McMains v. McMains, 15 N.Y.2d 283, 288, 289, 258 N.Y.S.2d 93, 99, 206 N.E.2d 185, 189.) Nevertheless, and in all cases, the broad discretion conferred upon the court, must be exercised with due regard to the 'circumstances of the case and of the respective parties.' (Domestic Relations Law, supra.) This means that the court is bound to take into consideration the circumstances surrounding the institution of the particular action before it, the merits thereof, and, in general, the 'case' of the wife for separate maintenance. Absent actionable misconduct or abandonment, however, the cause of a separation of the spouses and fault inducing or incidental thereto ought not to be and, under present day thinking, are not material factors in determining whether a husband should provide support for his wife; and there is little satisfaction in any endeavor to pinpoint the cause of marital discord.

Additionally, in effecting justice between the parties, full consideration must be given to their respective circumstances--their ages, health, needs, financial and personal abilities and marital standard of living. The assets, current earnings, and earning capacities of the wife as well as those of the husband are particularly important factors in determining if and when a support award shall be made and the amount thereof. (Phillips v. Phillips, 1 A.D.2d 393, 150 N.Y.S.2d 646, affd. 2 N.Y.2d 742, 157 N.Y.S.2d 378, 138 N.E.2d 738.)

Particularly, the utilization by the legislature of the phrase 'as justice requires' shows a design not to create a right to alimony as of course. (Vanderbilt v. Vanderbilt, supra, 1 A.D.2d 3, 11, 12, 147 N.Y.S.2d 125, 132, 133.) Furthermore, the wife's claim for support is not considered solely on the basis of her husband's ability to pay. No wife is 'entitled to a share of her husband's income as such.' (McMains v. McMains, supra, 15 N.Y.2d p. 288, 258 N.Y.S.2d p. 99, 206 N.E.2d p. 189. Also, Hunter v. Hunter, 10 A.D.2d 291, 295, 198 N.Y.S.2d 1008, 1013.) Definitely, the intent of the legislature was to confer the power and obligation upon the court to render such direction as public policy requires with due regard to the mutual rights and obligations of a husband and wife (cf. Vanderbilt v. Vanderbilt, supra, 1 A.D.2d 3, p. 12, 147 N.Y.S.2d 125, p. 133.)

The accepted marital relation contemplates the proper and continued cohabitation of the parties as husband and wife. Such cohabitation is vital to proper family life which is the backbone of our society. When parties marry, the state has an abiding interest in the preservation of a normal family relationship between them and with their offspring. The separation of spouses is not to be encouraged by an award of separate maintenance to the wife where, voluntarily and without justification, she maintains a separate home. Public policy requires that the discretion of the court to award separate maintenance to a wife be exercised in light of these considerations.

Furthermore, alimony was not designed to confer upon a woman of independent means or capacities a status of leisure and uselessness in society. The married woman, separated from her husband, should be encouraged, if consistent with her capacities and obligations to her children and family, to devote her energies to their full reach to make herself economically useful. So, also, policy considerations suggest that an award of alimony to a wife, living separate by choice, should be measured largely by her need for support in light of her resources, her earning capabilities and her family obligations. (See Phillips v. Phillips, supra; Brody v. Brody, 22 A.D.2d 646, 252 N.Y.S.2d 1008; Doyle v. Doyle, 5 Misc.2d 4, 158 N.Y.S.2d 909.)

A wife who, without adequate reasons, prefers to live separately from her husband, should not be heard to complain that she is deprived of the support benefits of the marital contract. If she is not in need, then, in fairness, the husband should be freed of his obligations to...

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