Kall v. Kall

• Decision Date: 22 December 1970
• Citation: Kall v. Kall, 316 N.Y.S.2d 464, 35 A.D.2d 943 (N.Y. App. Div. 1970)
• Parties: Evans J. KALL, Plaintiff-Appellant-Respondent, v. Celia KALL, Defendant-Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 464

316 N.Y.S.2d 464

35 A.D.2d 943

Evans J. KALL, Plaintiff-Appellant-Respondent, v. Celia KALL, Defendant-Respondent-Appellant.

Supreme Court, Appellate Division, First Department.

Dec. 22, 1970.

Philip F. Solomon, New York City, of counsel (Solomon & Solomon, New York City, attorneys) for plaintiff-appellant-respondent.

Robert S. Cohen, New York City, of counsel (Lans, Feinberg & Cohen, New York City, attorneys) for defendant-respondent-appellant.

Before STEVENS, P.J., and EAGER, CAPOZZOLI, TILZER, and BASTOW, JJ.

PER CURIAM.

Plaintiff, who was awarded a judgment of separation on the ground of abandonment and directed to pay alimony of $75 per week and additional counsel fee of $1,250 to defendant wife, appeals only from that part of the judgment entered June 16, 1970 (Gomez, J.), which awarded alimony and additional counsel fee. Defendant-wife cross-appeals only from that part of such judgment which awarded plaintiff a separation.

The parties were married in 1962. In 1966 the wife unsuccessfully instituted an action for separation. However, she was awarded alimony of $100 per week (later reduced by this Court to $75 per week, 298 N.Y.S.2d 659), and a counsel fee. There are no children of this union.

In awarding the separation to plaintiff husband, the court found as a fact that there were several good faith efforts by plaintiff to reconcile with defendant, which offers were rejected by defendant, and concluded as a matter of law that plaintiff is entitled to a judgment of separation on the ground of abandonment. In that connection, the court considered three letters written by plaintiff to defendant.

On this appeal, defendant contends the purported efforts at reconciliation as evidenced by the letters were contrived and should not have been considered. In other words, there was bad faith on the part of plaintiff.

Plaintiff urges good faith was found as a fact and, since the separation was awarded on the basis of defendant's misconduct, the court could not award alimony to defendant.

Upon the trial, plaintiff again expressed his willingness to reconcile. This was rejected, defendant characterizing, without more, such expression and efforts by plaintiff to reconcile as insincere. We affirm the finding of good faith efforts at reconcilation and the award of a separation to plaintiff.

We think, however, it was an improvident exercise of discretion to award alimony to defendant. Defendant is employed and no good reason appears from...