Kirk v. Kirk

• Decision Date: 18 January 1973
• Parties: Beverly KIRK, Appellant, v. Henry KIRK, Defendant, Onondaga County Attorney, Eli Gingold, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 346

340 N.Y.S.2d 346

41 A.D.2d 594

Beverly KIRK, Appellant, v. Henry KIRK, Defendant, Onondaga County Attorney, Eli

Gingold, Respondent.

Supreme Court, Appellate Division, Fourth Department.

Jan. 18, 1973.

C. Samuel Beardsley, Syracuse, for defendant.

Eli Gingold, Hugh C. Gregg, II, Syracuse, for respondent.

Before GOLDMAN, P.J., and WITMER, MOULE, CARDAMONE, and HENRY, JJ.

MEMORANDUM.

Upon the argument counsel advised the court that the husband has now been found and publication of process upon him will not be necessary in order for the wife to institute her action for divorce. It is estimated by counsel that her financial needs in this matter will be less than twenty-five dollars. Under these circumstances we should not disturb the discretion exercised by Special Term. We do not question the principle enunciated in Emerson v. Emerson, 33 A.D.2d 1022, 308 N.Y.S.2d 69.

Order affirmed without costs.

All concur except CARDAMONE, J., who dissents and votes to reverse the Order in the following Memorandum:

I dissent and vote to reverse the order which denied petitioner her application for leave to sue for a divorce as a poor person (CPLR 1101--1102). The petitioner made application for such relief in September, 1971 at which time she had four minor children aged ten to four years and was also pregnant. She had been a recipient of public assistance since May or June, 1969 and has no available assets or property to draw upon. There is no proof in the record before us controverting these issues and appellant is, therefore, prima facie entitled to proceed as a poor person (Emerson v. Emerson, 33 A.D.2d 1022, 308 N.Y.S.2d 69). The Trial Court at the first hearing in September, 1971 found that appellant was 'indigent at this time' and issued an order permitting her to proceed as a poor person. At a second hearing held in November, 1971 the Trial Court reversed itself after hearing, as additional facts, that appellant was granted $40 per month pregnancy allowance, received $187 representing a retroactive welfare payment, and was entitled to a $30--$35 monthly heating allowance. The record also reveals, however, that petitioner's monthly heating bill varied from $30 to $65 per month often exceeding the allowance granted; that the $126 worth of food stamps to which she was entitled was insufficient to meet food bills and care properly for appellant and her family, and that the $187 back payment she received was spent on school supplies and clothing for four school-age children shortly after being received. Even when the State of New York was able to pay 100 percent of budget needs, the Supreme Court, citing a 1967 Department of Health, Education & Welfare Report, stated in Rosado v. Wyman (397 U.S. 397, 408--409, fn. 12, 90 S.Ct. 1207, 1216, 25 L.Ed.2d 442) 'While New York purports to have paid its full standard, it would thus appear not to have paid enough to take a family out of poverty'. In 1971 to accommodate stringent budgetary problems, New York was compelled to reduce its payment to 90 percent of...