Libby v. Arnold

• Decision Date: 30 April 1957
• Citation: 161 N.Y.S.2d 798
• Parties: Ann LIBBY, Mother, on behalf of Nancy Arnold (10), Petitioner, v. Arthur ARNOLD, Respondent. * Domestic Relations Court of the City of New York, Family Court Division, Bronx County
• Court: New York Domestic Relations Court

Page 798

161 N.Y.S.2d 798

Ann LIBBY, Mother, on behalf of Nancy Arnold (10), Petitioner, v. Arthur ARNOLD, Respondent. ^* Domestic Relations Court of the City of New York, Family Court Division, Bronx County.

April 30, 1957.

Justin N. Feldman, New York City, for petitioner.

Fishbein & Okun, New York City (Maxwell Okun, New York City, of counsel), for respondent.

HOROWITZ, Justice.

This is a proceeding by petitioner against respondent for support of a ten year old girl, issue of their marriage. The single issue before the Court is the quantum of support respondent father should contribute for the child.

The law as applied to the instant case is well established and clearly stated in Schacht v. Schacht, 187 Misc. 461, 62 N.Y.S.2d 488 at page 492:

'In New York State the primary obligation for suport of a minor child rests upon its father, regardless of the earnings or other resources of the mother. DeBrauwere v. DeBrauwere, 203 N.Y. 460, 96 N.E. 722, 38 L.R.A.,N.S., 508. And the measure of such obligation is the child's needs in relation to the father's ability to provide and his station in life. See Johnston v. Johnston, 177 Misc. 618, at page 623, 31 N.Y.S.2d 126, 1932; Prindle v. Dearborn, 161 Misc. 95, at page 99 291 N.Y.S. 295, 299; cf. Garlock v. Garlock, 279 N.Y. 337, at page 340, 18 N.E.2d 521, 522, 120 A.L.R. 1331.'

The net of the mass of decisions dealing with a variety of particular circumstances is tersely summarized thus:

"The legal duty of a parent to support his minor children is affected by many considerations. His health, his means, his station in life, as well as similar considerations on the part of the child, have a bearing upon it. Although he is found to furnish support while his legal obligation continues, if of sufficient ability, it is the duty of the parent only to do the best he can to support his child in the manner suitable to his station and circumstances. The tests of the parent's ability to furnish adequate support are ordinarily comparative rather than absolute. The relative size of the income or means of the parent and of the child are to be considered, as well as the number of persons dependent on the father for support, and other items of expense or other demands to be met within the father's means.' 39 Am.Jur., § 36, p. 636.' See also Langerman v. Langerman, 203 Misc. 230, 116 N.Y.S.2d 420.

The parties were divorced in 1948. Petitioner has custody of the child. Under a written separation agreement between the parties respondent paid petitioner $50 per week for the support of the child. These payments continued until some time in July 1956 when petitioner who had remarried was divorced from her second husband. The child lived with petitioner and her second husband during their married life and petitioner received the $50 per week from respondent during that period for the child's support. Petitioner testified the child during said period lived 'very nicely and very comfortably'. Some time in July 1956, when petitioner's divorce from her second husband was consummated, petitioner communicated with respondent and advised him she needed more money for the child. He voluntarily increased his contribution from $50 to $60 a week, which sum he still continues to pay.

Following her divorce from her second husband, petitioner and the child moved into a three room apartment in Riverdale, at a rental of $135 a month. The child had a room for herself and petitioner slept in the living room. After some months in that apartment, petitioner testified, she found her sleeping in the living room uncomfortable. They then moved to another apartment in the same building consisting of four and one-half rooms with a separate bedroom for petitioner, at a rental of $185 per month. At the present time petitioner and the child continue to reside there.

Petitioner, a well poised, intelligent woman, is employed as a secretary with a take home salary of $69 per week and has $25,000 with her broker from which she receives $50 every two months. The $25,000 represents the sum received from her second husband when she divorced him.

Petitioner claims that from July 1, 1956 to March 31, 1957 she expended a total sum of $3,000 for the maintenance of the child and alleges at that current cost rate she will have to spend $4,664 for the entire year from July 1, 1956 to June 30, 1957 for said child. Petitioner further projected an estimate of what cost requirements to adequately maintain the child for a twelve month period, as the sum of $14,052.

Respondent, who preceded petitioner as a witness, briefly testified that he is employed as a public relations and sales promotion man for an oil company (name omitted for purposes of this opinion) at a gross salary of approximately $45,000 a year, plus $10,000 in dividends, but indicated an unfamiliarity with the details and particulars of the sources of his income which he requested leave to have his accountant explain under oath. His request was granted by the Court.

Petitioner's attorney with great vigor and persistency contended that the Court was without power to call petitioner to the witness stand to establish the alleged needs of the child until after testimony by respondent as to his financial ability and station in life and until a full examination of the books and records of some twenty-two corporations or entities from which petitioner believed respondent derived some source of income or had stock holdings or other financial interest. While it is true that respondent's obligation to support the child is related to respondent's station in life and financial ability to meet that obligation (cases cited supra), the Court pursuant to Rule XIII of the Family Court, in its discretion called petitioner as a witness without first requiring an excursion into the activities and operation of all of such corporations. Petitioner then testified as hereinabove indicated.

The Court is of the opinion that orderly procedure requires that petitioner sustain the burden of proof as to the child's requirements by coming forward with evidence of such needs before respondent is required to testify as to his income and means. Under the Domestic Relations Court Law, Section 131, respondent is prima facie presumed to have sufficient means to support his child. It was never intended to require the respondent,--as petitioner would have him do--to produce voluminous books and records of innumerable corporations and journey through a veritable forest of activities of each of such corporate domains to ascertain what, if any, financial interest respondent has in each of them before petitioner makes out a case. It was never intended that respondent should build up a figure representing his income and means for petitioner to use as a target to shoot at in the fixation of an amount she believes is needed for the child. The need must be defined by petitioner, so that the Court may consider on respondent's ability and station in life to what extent he should be required to pay for it.

After testimony as to the child's alleged needs, evidence of respondent's financial ability and station in life then becomes pertinent and can be related by the Court in its determination to the measure of support ordered. See Earle v. Earle, 205 Misc. 738, 130 N.Y.S.2d 238. After the Court so ruled on this issue, respondent's accountant was called as a witness.

He testified that he was a Certified...