Hickland v. Hickland
| Decision Date | 24 February 1976 |
| Citation | 346 N.E.2d 243,39 N.Y.2d 1,382 N.Y.S.2d 475 |
| Parties | , 346 N.E.2d 243 Richard A. HICKLAND, Respondent, v. Alice M. HICKLAND, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
James Cooper and John S. Hall, Warrensburg, for appellant.
John J. Carusone, Jr., Glens Falls, for Richard A. Hickland, respondent, and Richard A. Hickland, pro se.
This appeal presents questions relating to the fixing of alimony where a divorcing wife and husband each have separate means of producing current income and the husband has chosen not to exercise those available to him.
Special Term awarded the appellant wife alimony of $50 per week and exclusive possession of a house and the farmland on which it is located. The Appellate Division struck the alimony award and gave the respondent husband the right to enter the land in order to farm it, although continuing in the wife possession of the house itself. The wife now seeks reinstatement of the awards made at Apecial Term. For the reasons which follow, the order of the Appellate Division should be modified to reinstate the alimony award.
The parties were married in 1946. They have two children, one of whom is over 21 and the other of whom is 19 years of age. The wife has been a schoolteacher for some years; the husband, employed as an engineer, had, by 1968, reached an annual earnings level of some $45,000 plus bonuses and benefits. Those earnings constituted the bulk of their income.
In 1968 the husband persuaded his wife to let him try his hand at full-time farming as an occupation. This occupational change was an experiment and, according to the proof, the wife agreed to it in the expectation that it would provide them with a living. When she made this commitment, she was aware of the fact that a substantial amount of deferred income, scheduled to be received from his former employer, would help to support them during the initial phase of the change. After putting the plan into effect, the parties continued to live in the marital residence. The professional farming took place at another location, known as Argyle Farm. Contrary to expectations, the farming venture proved to be a losing proposition.
In 1969, when a tractor accident temporarily sidelined the husband, he hired someone else to run the farm, devoting himself instead to freelance management consulting, for which he possessed an expertise developed during his engineering career. He quickly proved his continued high earning capacity in that calling. Because he failed to file income tax returns for the last few years of the marriage, the trial court was unable to ascertain the husband's exact consulting income, but his own testimony established it at not less than $35,000 net annually until 1972, the year in which separation proceedings, which preceded the ultimate divorce, were begun. In that year, midst negotiations for a separation agreement, he decided to abandon an outgoing consulting assignment which would have paid him approximately $20,000 for some 10 weeks' work. Insisting that he has become a full-time farmer, he has steadfastly refused all offers of consulting employment ever since.
During the same period, the husband also entered into a contract with his sister. By its terms, he turned over to her title to all of his New York real estate, including the marital residence and Argyle Farm, along with various stocks and bonds which he then owned. There was no cash consideration for the transfer. Instead, the sister forgave him a small loan and guaranteed him the use of a car and its related expenses, all the good he needed from the farm, a remodeled house on it to live in rent free, $15,000 in benefits to each of his children upon his death, a college education for his minor son, and a percentage of any possible profits from the farm and the securities. He agreed to manage the farm and the stock portfolio without salary. Under that arrangement, while necessarily conceding that he has turned himself into the guarante recipient of present creature comforts for himself and future benefits for his children, he asserts he is a subsistence farmer with no income from which to pay alimony to his wife.
Special Term found that he was to be regarded as a management consultant up to the time of the divorce and that his continued self-classified status as a subsistence farmer was at least in major part a ploy to put his assets beyond his wife's reach. The Appellate Division, on the other hand, put great store in the husband's original plan to become a farmer, even though unilaterally renewed at the time of the divorce by him. In effect, it charged the wife with having assumed the risk that the farm venture would not pay.
It appears to us, however, that the record amply supports Special Term's finding that the husband here deliberately stripped himself of income for reasons which went beyond the needs of a reasonable occupational choice. It is clear that he is capable of earning a substantial income. And his arrangement with his sister reeks of an impermissible attempt to avoid his obligation to his wife.
Nor can the husband excuse his attempted avoidance of his obligations by an exaggerated reliance on his wife's acquiescence in his plan to take up farming. As already indicated, the husband never actually put his plan into full practice while the marriage was viable, but only after the parties had already separated. By then the presures of self-interest were too great for the evidence of a sham to be overlooked. Moreover, her acquiescence itself is not to be deemed to extend to all possible ramifications of her husband's decision, since it is manifest that, at all time prior to the divorce, the farm's unprofitability was viewed by both parties as a temporary circumstance...
To continue reading
Request your trial
-
Muller v. Muller
...and Hanks v. Hanks, 296 N.W.2d 523 (S.D.1980); cf. Straub v. Straub, 381 N.W.2d 260 (S.D.1986); see also Hickland v. Hickland, 39 N.Y.2d 1, 382 N.Y.S.2d 475, 346 N.E.2d 243 (1976). The consistent perspective has also been applied to the earning capacity of the recipient spouse to come withi......
-
Leibowits v. Leibowits
...809, 398 N.Y.S.2d 1032, 368 N.E.2d 288; Hickland v. Hickland, 46 A.D.2d 954, 362 N.Y.S.2d 240, mod on other grounds 39 N.Y.2d 1, 382 N.Y.S.2d 475, 346 N.E.2d 243, cert. den. 429 U.S. 941, 97 S.Ct. 357, 50 L.Ed.2d 310), and the same restriction would apply under the new law, as discussed Und......
-
Conner v. Conner
...of homemaking and the difficulty of rehabilitating a homemaker for entry into the labor market (see, e.g., Hickland v. Hickland, 39 N.Y.2d 1, 6, 382 N.Y.S.2d 475, 346 N.E.2d 243; Kay v. Kay, 37 N.Y.2d 632, 637-638, 376 N.Y.S.2d 443, 339 N.E.2d 143; Phillips v. Phillips, 1 A.D.2d 393, 395, 1......
-
Zito v. Zito, 53468/2011.
...demonstrated earning potential” (Lennox v. Weberman, 109 AD3d 703, 703–704, 974 N.Y.S.2d 3 [1 Dept., 2013], citing Hickland v. Hickland, 39 N.Y.2d 1, 382 N.Y.S.2d 475 [1976],cert denied 429 U.S. 941, 97 S Ct 357 [1976] ). Stated differently, in a case such as this, where plaintiff's evidenc......