Lindley v. Lindley

• Decision Date: 12 April 1957
• Citation: 162 N.Y.S.2d 217
• Parties: LINDLEY v. LINDLEY.
• Court: New York Supreme Court

Page 217

162 N.Y.S.2d 217

LINDLEY v. LINDLEY.

Supreme Court, Trial Term, New York County, Part XIX.

April 12, 1957.

Oscar B. Sachs, New York City, for Hilda Lindley, plaintiff-wife.

Norman Annenberg, New York City, for Francis V. Lindley, plaintiff-husband.

SCHWEITZER, Acting Supreme Court Justice.

This is an action by the plaintiff wife for separation on the grounds of non-support and cruel and inhuman treatment. The parties were married in 1945 and have three children, aged, respectively, one, five and eight years. The testimony established that the family's scale of living is at the rate of about $16,000 a year, including a rental of $190 per month for a six-room apartment, the cost of maintaining a home in Montauk, Long Island, the expenses of private schooling, and the employment of a regular sleep-in housekeeper.

The testimony was practically undisputed that at least during the past several years the plaintiff wife alone has borne the entire burden of the said annual expenses out of her earnings and borrowed funds. The husband has been engaged in the profession of tutoring and during the last three years had average gross earnings of about $1,000 a year. During that period, as the wife testified, the husband contributed no more than $25 a year toward the ordinary household expenses and no more than a further sum of about $25 a year toward the purchases of food.

The evidence clearly establishes that the husband has been guilty of culpable neglect and refusal to provide for his wife and children in accordance with his means. As the Court of Appeals has pointed out: 'The obligation of the husband to provide his wife and children with the necessaries of life suitable to their condition is to be measured with reference to his pecuniary ability, honestly exercised, or his pecuniary resources * * *.' De Brauwere v. De Brauwere, 203 N.Y. 460, 464, 96 N.E. 722, 723, 38 L.R.A., N.S., 508. (Emphasis supplied.) The husband's means 'include not only his actual earnings, but his potential earning power' (Panarella v. Panarella, Sup., 134 N.Y.S.2d 440, 442; 2 Bishop, New Commentaries on Marriage, Divorce and Separation, p. 1892).

The evidence here discloses that the husband has made no honest effort to boost his sub-marginal earnings as a tutor or to seek other employment which would yield increased earnings, and that there has been a complete absence of any honest endeavor on his part to realize his earning potential.

A chart of the husband's activities over a period of approximately three years was marked in evidence and showed an unbelievable record of extremely abbreviated working hours. During the period encompassed by the chart, the defendant's work record consisted sometimes of no more than there or four hours per day; for eight months, it varied from eleven to fifteen hours per week; for five months, it comprised between sixteen and twenty hours per week; and his greatest period of activity was between twenty-one and twenty-five hourse per week for a period of four months. During each of the summers of 1954, 1955 and 1956, he idled for three months at the parties' summer residence at Montauk without making any bona fide effort to obtain employment. He appears to have given no thought whatever to the possibility that his wife's earnings might become impaired and thereby jeopardize the welfare of his entire family.

The defendant is a Yale graduate, whose talents have brought him the highest of scholastic honors. He has, however, put his talents to such small use as to compel the inference that he has culpably neglected and refused to discharge his obligations to support his family, thus warranting the granting of judgment of separation in plaintiff's favor upon the grounds of non-support.

The evidence further warrants the granting of a separation on the grounds of cruel and inhuman treatment. It was thus established that after plaintiff's confinenment incident to the birth of her third child in February, 1956, she had no earnings for a period of time. Her small reserve was ultimately depleted and there came a time when there was no money available with which to purchase food for the family. In desperation, plaintiff sold a pint of her blood for $15 to enable her to buy food. Significantly enough, the defendant admits that the plaintiff sold her blood on more than one occasion. He has offered, however, what clearly appears to be a specious and unconvincing explanation. He thus testified that when the plaintiff indicated her intention of becoming a commercial blood donor, he tried to dissuade her by offering her the sum of $15. Plaintiff denied ever having received any such offer from her husband. Defendant's testimony in this regard beggars belief. It is inconceivable that plaintiff would submit herself to becoming a commercial blood donor shortly after the birth of a child in the face of an alleged offer of financial assistance by the husband.

There were, moreover, other specific instances of abuse on the part of the defendant to which the plaintiff testified. Which the charges were denied by defendant, the court finds that his testimony is not entitled to credence.

Defendant urges that the plaintiff is in any event barred from any relief because the parties were residing in the same apartment at the time of the commencement of the action, and indeed, down to and throughout the trial. The general rule appears to be that where a husband and wife are living together in a common place of abode, neither is entitled to sue for a judicial separation (Berman v. Berman, 277 App.Div. 560, 101 N.Y.S.2d 206).

The Appellate Division has, however, made it clear in a recent decision that that rule is not a rigid or inflexible one and that a complaint in a separation action is not 'necessarily legally...