Covert v. Covert

• Decision Date: 21 October 1965
• Citation: 48 Misc.2d 386,264 N.Y.S.2d 820
• Parties: Helen G. COVERT, Plaintiff, v. Peter H. COVERT, Defendant.
• Court: New York Supreme Court

Page 820

264 N.Y.S.2d 820

48 Misc.2d 386

Helen G. COVERT, Plaintiff, v. Peter H. COVERT, Defendant.

Supreme Court, Special Term, Rockland County.

Oct. 21, 1965.

Francis A. Kelly, Washington, D. C., for plaintiff.

Maurice Phillips, Spring Valley, for defendant.

NICHOLAS M. PETTE, Justice.

Defendant moves for an Order pursuant to Section 236 of he Domestic Relations Law modifying the Order of this Court dated September 12, 1960 granted by Mr. Justice William B. Lawless of the Supreme Court, Erie County, by reducing the alimony payments required under such Order to $20.00 per week, and for such other and further relief as to the Court may seem just and proper.

It appears that by Order of this Court Dated September 12, 1960 a decree of divorce was granted in which plaintiff was awarded alimony at the rate of $100.00 per week. At that time defendant was unmarried, had no dependents and was earning a net salary of $10,000 per year. There was no issue of that marriage. Since the date of such decree there had been a tremendous change in defendant's economic condition and circumstances.

Since said divorce the defendant has remarried and now has three children the issue of said marriage, which include twines born in July of 1965, the oldest child being 1 1/2 years old. Although defendant's net earnings are now $13,000 per year his personal obligations have greatly increased and of course, the purchasing power of the dollar is much less.

Defendant has set forth on page '2' of his supporting affidavit herein, an itemized statement of his monthly expenses which add up to $781 and with current monthly alimony payments to plaintiff of $433 make his total monthly expenses $1214.00 or $14,568 per annum.

Defendant alleges that the recent birth of twins to his wife created heavy medical expenses, since the births were difficult and both children were on the critical list for several days after birth at Good Samaritan Hospital, Suffern, New York. His hospital bill to date is $2,250, and doctors' and attending surgeons' bills amount to $1,000, and both children requiring hospitalization for an additional six weeks at a cost of $2100 will make his total medical bill $5,350.00.

Defendant further alleges that by Doctor's orders, his wife will be bedridden for the next two months, and as a result a practical nurse is required at an additional expense of $40 per week.

Due to the increased financial pressure, defendant had to borrow from his company, Atlantic Micro-Film Corp., of which he was president and sole stockholder. And due to pressure from creditors of the Company, Defendant had to sell one half interest in the Company and apply all the proceeds to pay the Company's debts. He now cannot borrow from the Company, and thus a source of funds by borrowing as well as a source of potential income is gone.

Defendant alleges that plaintiff presently earns about $6,000 a year and at the time of the Order fixing alimony she was earning about $5,200 a year. She received the family household from defendant and presently has about a $30,000 equity in it. She also received $12,000 in cash for her share in defendant's Company. Her alimony payments through April, 1965 are paid in full. Defendant avers that plaintiff's annual income to date including alimony payments exceeds $10,000. Defendant's income after alimony payments is under $8,000. Plaintiff lives alone, while defendant is the sole support of a family of five.

It is significant that plaintiff is single, admittedly 48 years of age, in good health, childless and earning about $6,000.00 per annum; that she owns a fine home worth $40,000, with a mortgage thereon less than $10,000 and that defendant in April of this year paid plaintiff the sum of $9,000 for all accumulated arrears of alimony, which sum of $9,000 defendant borrowed from the new interest in the corporation.

The Supreme Court, under Section 236 of the Domestic Relations Law, may '[u]pon the application of either the husband or the wife, upon such notice to the other party and given in such manner as the court shall direct, the court may annul or modify any such [alimony] direction * * *.'

The Court in considering an application for modification of the amount of a prior alimony award will consider any significant changes in circumstances which materially increase or decrease the financial burden on either spouse. There is no definite rule as to what elements should be considered by a court in determining a motion to reduce an alimony award. The individual factors and circumstances of each case must be weighed by the Court, in its discretionary efforts to seek to achieve a true and equitable balance.

The commentary by David D. Siegel to Section 236 of the Domestic Relations Law discusses the discretion of the court as to matters of support, as follows:

'The most striking aspect of Section 236 [Domestic Relations Law] is the unfettered...