Kover v. Kover

• Court: New York Court of Appeals
• Writing for the Court: FULD
• Citation: 278 N.E.2d 886,328 N.Y.S.2d 641,29 N.Y.2d 408
• Decision Date: 13 January 1972
• Parties: , 278 N.E.2d 886 Carol KOVER, Appellant, v. Arthur KOVER, Respondent. Florence E. MIRALDI, Respondent, v. Dominick A. MIRALDI, Appellant. John DULBER, Appellant, v. Sylvia DULBER, Respondent.

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328 N.Y.S.2d 641 29 N.Y.2d 408, 278 N.E.2d 886 Carol KOVER, Appellant,
v.
Arthur KOVER, Respondent.
Florence E. MIRALDI, Respondent,
v.
Dominick A. MIRALDI, Appellant.
John DULBER, Appellant,
v.
Sylvia DULBER, Respondent. Court of Appeals of New York. Jan. 13, 1972.

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[278 N.E.2d 887] [29 N.Y.2d 410] Jon M. Kaufman and Saul Friedberg, New York City, for appellant Carol kover.

Morris Fierson, New York City, for respondent Arthur Kover.

[29 N.Y.2d 411] Jesse Rothman, New York City, and Richard Goldsweig, Yonkers, for appellant Dominick A. Miraldi.

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Richard R. Reigi, Staten Island, for respondent Florence E. Miraldi.

[29 N.Y.2d 412] Julius Neiman, New York City, for appellant John Dulber.

Abraham Werfel, Jamaica, for respondent Sylvia Dulber.

[29 N.Y.2d 413] FULD, Chief Judge.

The husband and wife in each of these three childless marriage cases had lived apart for more than two years following a decree of separation which contained a provision for alimony. In subsequent actions for divorce, brought pursuant to section 170 (subd. (5)) of the Domestic Relations Law, Consol.Laws, c. 14, each husband opposed the continuation of any alimony, in large part on the ground that his wife was self-supporting. The present appeals deal principally with (1) the effect of a provision for alimony in the prior separation decree and (2) with factors to be considered by the court in fixing alimony in the suit for divorce.

The cases before us--in which a wife, who was awarded alimony in the separation decree, seeks alimony in the later divorce action--differ from those in which the wife or husband seeks modification of an alimony provision contained in an earlier matrimonial decree. In the latter instance, despite the broad language of section 236 of the Domestic Relations Law, ¹ the courts have ruled that a party seeking a reduction or increase must show a 'substantial change of circumstances'. (Brody v. Brody, 22 A.D.2d 646, 252 N.Y.S.2d 1008, affd. 19 N.Y.2d 790, 279 N.Y.S.2d 732, 226 N.E.2d 539; Presberg v. Presberg, 285 App.Div. 1134, 140 N.Y.S.2d 517; Hedaya v. Hedaya, 68 Misc.2d 165, 327 N.Y.S.2d 720.) This accords with the fundamental principle that litigation must have an end and that a court, having performed its function, may not lightly be asked to do it all over again.

In a case, however, where divorce follows separation--whether under the recently enacted provision of the Domestic Relations Law ( § 170, subd. (5) (L.1966, ch. 254)) or under prior law on the ground of adultery--the parties are before the court in a new and different proceeding, in which different relief is sought. Under such circumstances, the court is privileged to consider the question of alimony De [278 N.E.2d 888] novo. (See, e.g., Plancher v. Plancher, 29 N.Y.2d 880, 328 N.Y.S.2d 444, 278 N.E.2d 650 (decided Jan. 5, 1972), affg. 35 A.D.2d 417, 422, 317 N.Y.S.2d 140; Bishop v. Bishop, 15 A.D.2d 494, 495, 222 N.Y.S.2d 232; Goshin v. Goshin, 281 App.Div. 979, 120 N.Y.S.2d 596; Hedaya v. Hedaya, 68 Misc.2d 165, 327 N.Y.S.2d 720, Supra.) Thus, it has been expressly held that 'the alimony provision in the [29 N.Y.2d 414] separation

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decree is not conclusive with respect to the fixation of alimony in the divorce action and does not require plaintiff to bear the burden of showing change of circumstances'. (Goshin v. Goshin, 281 App.Div. 979, 120 N.Y.S.2d 596, Supra.) And, in the Bishop case (15 A.D.2d 494, 495, 222 N.Y.S.2d 232, 233, Supra), the court declared, '(t)he stipulation and the separation decree do not deprive the Trial Judge in the divorce action of the power to award amounts for support which are different from the amounts specified in the separation decree'.

Concluding, therefore, that the courts are not bound by the prior alimony awards, we must now determine the relevant elements or factors to be considered in fixing alimony in suits instituted under subdivision (5) of section 170.

Formerly, various provisions of the Civil Practice Act (e.g., §§ 1155, 1169, 1170) directed a husband to provide for the wife 'as justice requires' and 'having regard to the circumstances of the respective parties'. This was originally interpreted as mandating the measure of alimony to be simply 'commensurate with the manner in which the parties have lived and a consideration of the ability of the husband to furnish means of support.' (Tirrell v. Tirrell, 232 N.Y. 224, 230, 133 N.E. 569, 570; see, also, Burr v. Burr, 7 Hill 207, 211; cf. Hearst v. Hearst, 3 N.Y.2d 967, 169 N.Y.S.2d 36, 146 N.E.2d 792, affg. 3 A.D.2d 706, 159 N.Y.S.2d 753.) But, as the Appellate Division noted in 1956 in Phillips v. Phillips (1 A.D.2d 393, 395, 150 N.Y.S.2d 646, 649, affd. 2 N.Y.2d 742, 157 N.Y.S.2d 378, 138 N.E.2d 738), the times have changed, owing not alone to the coequal status which a married woman today shares with her husband but also to the increase in the number of married women working in gainful occupations. (See, also, Doyle v. Doyle, 5 Misc.2d 4, 6, 158 N.Y.S.2d 909, 911.)

In fixing the amount of alimony to be awarded, the courts look, in the first instance, to the provisions of section 236 of the Domestic Relations Law (L.1962, ch. 313, as amd., L.1968, ch. 699). This provision--which, as one commentator observed, 'replaces many of the scattered provisions of prior law in the area of alimony and support for the wife' (Siegel, Prac.Comm., McKinney's Cons.Laws of N.Y., Book 14, Domestic Relations Law, § 236, p. 135)--vests the courts with an exceedingly[29 N.Y.2d 415] wide latitude in determining the right to alimony and its amount. ² The statute recites, in part, that

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[278 N.E.2d 889] 'In any action or proceeding brought * * * for a separation, or * * * for a divorce, the court may direct the husband to provide suitably for the support of the wife as, in the court's discretion, justice requires, having regard to the Length of time of the marriage, the ability of the wife to be self supporting, the circumstances of the case and of the respective parties.' (Emphasis supplied.)

In addition to 'the length of time of the marriage (and) the ability of the wife to be self supporting'--factors expressly added to section 236 in 1968 (L.1968, ch. 699)--the courts have indicated a number of other circumstances to be taken into account in fixing alimony. These include the husband's financial resources and the established standard of living of the parties (see Hearst v. Hearst, 3 N.Y.2d 967, 169 N.Y.S.2d 36, 146 N.E.2d 792, affg. 3 A.D.2d 706, 159 N.Y.S.2d 753, Supra; see, also, Winkler v. Winkler, 11 N.Y.2d 693, 225 N.Y.S.2d 763, 180 N.E.2d 915); the age and health of the parties and, to a limited extent, their conduct. (See Phillips v. Phillips, 1 A.D.2d 393, 398, 150 N.Y.S.2d 646, 651, affd. 2 N.Y.2d 742, 157 N.Y.S.2d 378, 138 N.E.2d 738, Supra; Gurian v. Gurian, 29 N.Y.2d 920, 329 N.Y.S.2d 99, 279 N.E.2d 855 (also decided today), affg. 36 A.D.2d 853, 321 N.Y.S.2d 452.) As stated in the Phillips case, 'The ultimate determination in each case must depend upon a balancing of several factors--the financial status of the respective parties, their age, health, necessities and obligations, their station in [29 N.Y.2d 416] life, the duration and nature of the marriage, and the conduct of the parties' (1 A.D.2d 393, 398, 150 N.Y.S.2d 646, 651, affd. 2 N.Y.2d 742, 157 N.Y.S.2d 378, 138 N.E.2d 738, Supra). ³

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When it amended section 236 to specify that the court should consider the wife's 'ability * * * to be self supporting,' the Legislature gave explicit statutory recognition...