Grant v. Grant

• Decision Date: 15 December 1969
• Citation: 61 Misc.2d 968,307 N.Y.S.2d 153
• Parties: In the Matter of: Amy GRANT, Petitioner, v. Cedrick GRANT * , Respondent.
• Court: New York Family Court

Page 153

307 N.Y.S.2d 153

61 Misc.2d 968

In the Matter of: Amy GRANT, Petitioner, v. Cedrick GRANT ^*, Respondent.

Family Court, City of New York, New York County.

Dec. 15, 1969.

J. Michael Soloman, New York City, for petitioner.

Hamlet O. Catenaccio, New York City, for respondent.

RICHARDS W. HANNAH, Judge.

This proceeding presents the issue of whethere a husband can avoid paying an order of support for his wife by voluntarily retiring from his position. This issue also extends to a husband or father who threatens to retire to avoid an order of support being made against him. This practice affects the wives and children of men who retire upon social security benefits and pensions. Recently, this court has heard many men ranging from the $80 a week worker to the $36,000 a year professional, say that because of their right to retire the obligation to support is terminated or radically decreased. In fact this has resulted in some wives and children being compelled to seek public assistance.

In this instance, the parties were married in Italy in 1927. Petitioner came to the United States with two children in 1937 while pregnant with the third child. Respondent came in 1947 after the war when his military had been completed.

Marital difficulties began in 1949 culminating in the parties deciding to live separately.

Respondent has been working as a brick layer and construction worker. In 1949 the Domestic Relations Court ordered him to pay support for his wife and four children.

A history of this case indicates that respondent has been before the court on arrears complaints many times, and has been found to be in violation of the court order. There have been several downward modifications of the original order when each of the children became self supporting.

In 1966 Respondent consented to an order to pay $15 a week for only the support of his wife. This amount was based upon his earnings of $80 per week. Petitioner, age 59, has continued to work earning $59 net weekly as a cleaner in a building although suffering from arthritis. Petitioner brought this complaint on arrears. Respondent who is 62 years old, claims to have retired and is receiving social security payments of $119.80 per month. He seeks to have the order of support terminated solely upon this ground. He claims to have no assets of any kind.

Section 412 of the Family Court Act provides that 'A husband is chargeable with the support of his wife and, if possessed of sufficient means or able to earn such means, may be required to pay for her support a fair and reasonable sum. * * *' The mere fact that respondent is eligible for retirement does not relieve him of this responsibility to support his wife.

The basis for awarding support has been recognized to be earning power rather than actual earnings. (Andrews v. Andrews, (1938) 166 Misc. 385, 2 N.Y.S.2d 575, Tell v. Tell (1944) Dom.Rel.Ct.N.Y., 53 N.Y.S.2d 94, Lorenzo v. Lorenzo, (1944) 183 Misc. 46, 50 N.Y.S.2d 191.) An excellent illustration of how far the courts have gone to enforce this very basic responsibility is set forth in Jenkins v. Jenkins (1942) 179 Misc. 905, 40 N.Y.S.2d 173, where the parties were aged and living apart for over forty years. Respondent husband had been in default under a...