Monfette v. Van Sickle

• Decision Date: 05 November 1973
• Citation: 76 Misc.2d 275,351 N.Y.S.2d 46
• Parties: . Raymond L. MONFETTE, Petitioner, v. Sally A. VAN SICKLE, Respondent. Family Court, Ulster County
• Court: New York Family Court

Page 46

351 N.Y.S.2d 46

76 Misc.2d 275

In the Matter of a Proceeding for Support under Article 4 of the Family Court Act Raymond L. MONFETTE, Petitioner, v. Sally A. VAN SICKLE, Respondent.

Family Court, Ulster County.

Nov. 5, 1973.

Norman Kellar, Kingston, for petitioner.

Nirenberg, Lippman & Pearle, for respondent; Barry M. Lippman, New York City, of counsel.

HUGH R. ELWYN, Judge.

This is an application pursuant to Sections 461 and 466 of the Family Court Act for the modification of the support provisions of a New York State divorce decree which, in accordance with the provisions of a separation agreement between the parties, ordered the husband to pay the sum of $30 per week for the support of each of four children, upon the ground of a change in circumstances.

The change of circumstances relied upon to justify a sought for downward reduction in the husband's support obligations to $20 per week per child is his subsequent remarriage and the pregnancy of the second wife, who is expecting a child in November, 1973. Heretofore the petitioner's second wife worked outside the home and he was then able to meet the payments directed by the Court. He contends, however, that because there are no longer two wage earners in his household, it will be impossible for him to keep up the support payments previously ordered.

The petitioner's proof shows that the parties were divorced by a decree of the Supreme Court on September 9, 1971 which, in accordance with the separation agreement between the parties, directed the husband to make support payments of $30 per week for each of four children. The petitioner remarried on April 1, 1972 and his second wife is now pregnant. She was formally employed as a school teacher, but since she is expecting the birth of a child in early November, 1973 she is now on maternity leave.

The petitioner is a school principal with a salary for the school year of 1972--73 of $17,146. His salary for the 1973--74 school year will be $18,000, an increase of nearly $900. However, according to the petitioner, approximately one third of his gross income is consumed by State and Federal income taxes.

The petitioner's monthly budget for the necessary household expenses of his second family totals $556, which, since it does not make any provision for medical care, home repairs and maintenance, auto repairs or even gasoline, purchase or cleaning of clothes, etc. is, he contends a 'bare bones budget'. He summarizes his financial condition as follows:

                Gross income 1972-73                         $17,146.00
                Deductions
                    Social Security, Taxes, etc.  $5,735.00
                    Child Support (present)        5,600.00
                                                  ---------
                Total Deductions                              11,335.00
                                                             ----------
                Net Income                                     5,811.00
                Probable Refund on Income Tax                  1,000.00
                                                             ----------
                Net available for support of
                  Petitioner and wife                        $ 6,811.00
                

The petitioner asks the Court to take judicial notice of the fact that it is well nigh impossible for a man in his circumstances and station in life (a school principal) to support himself, a wife and infant child on $6,811.00 a year or $567 per month. He further claims that his first wife is an able bodied healthy woman who should find work and help support their children. Equity and fairness, he contends, demand that he should have some respite from the burden of supporting his four children by the first marriage.

The respondent did not testify in opposition to the application, but did present ample proof through the testimony of her present husband that the children's needs have not diminished, but have in fact increased. The respondent's proof concerning the children's needs is more than sufficient to support the order at the present level.

Thus there is squarely presented the crucial issue--whether the husband's remarriage and the anticipated birth of a child of that marriage is a sufficient change in circumstances to justify a reduction in the level of support for the children of the first marriage where those children's needs have not diminished nor the husband's income decreased. The answers which the courts have given to this question are conflicting and have no doubt been influenced by the particular Judge's view of the sanctity of the marriage contract, the responsibilities of parenthood and his assessment of the moral climate of his times.

A review of the Family Court decisions which have dealt with the question reveals a metamorphosis from the strict view that a husband's liability is not diminished by any obligation he may incur as the result of a second marriage to the more liberal view that all persons having a claim upon the man's earnings should share in fair proportions.

Illustrate of the first point of view is Helman v. Helman, 190 Misc. 991, p. 944, 74 N.Y.S.2d 310, p. 314, where the Court said: 'Respondent's remarriage and the second wife's pregnancy do not relieve him of his duty to support the child of his first marriage nor upon the present record diminish the extent of such duty. The second wife married him at Reno, Nevada, with full knowledge of that child's existence and of the Nevada Court's direction for its support'.

In so far as the second wife is concerned, further expression of this point may be found in Benedict v. Benedict, 203 Misc. 286, 115 N.Y.S.2d 352 wherein the court said: 'In arriving at today's order no allowance may be made for respondent's 'second wife' personally; in view of the adjudged invalidity of the Nevada divorce decree she has no legal claim on respondent. And even if there had been a lawful remarriage, she knew of respondent's prior support obligations, at least to the two children, and assumed that hazard.'

However, the Court in Benedict then proceeded to soften the harshness of its holding by saying (p. 294, 115 N.Y.S.2d p. 363): 'However, her pregnancy is a factor which should not be wholly disregarded, inasmuch as respondent does have legal as well as moral obligations for the safe delivery of the expected child and for its support after birth; and there is logical force in the view that the Court should look at the entire situation realistically. Cf. Johnston v. Johnston, 177 Misc. 618, and cases cited at pages 623--625, 31 N.Y.S.2d 126, at pages 131--134.'

In Johnston v. Johnston, 177 Misc. 618, 623, 31 N.Y.S.2d 126, 132, cited in Benedict the Court acknowledged that 'on the question of the extent to which the issue of the first marriage must suffer from the father's assumption of new responsibilities by remarriage there is a surprising dearth of available authorities, and a conflict among them'.

After reviewing some of the authorities (e.g. Ryer v. Ryer, 33 Hun. 116 and Levy v. Levy, 149 App.Div. 561, 133 N.Y.S. 1084) holding that remarriage and the assumption of new obligations constitute no excuse for evading old ones and Baxter v. Baxter, 256 App.Div. 892, 9 N.Y.S.2d 44 holding that the granting of relief was discretionary, the Court in Johnston concluded that, '* * * there is logical force in the view that the Court should look at the situation realistically as it exists and, In a proper case, direct that all parties who are entitled to support receive it in fair proportions. Cf. Krause v. Krause, 282 N.Y. 355, 26 N.E.2d 290.'

Further support for this point of view is contained in Werner v. Werner, 204 Misc. 1085, p. 1089, 127 N.Y.S.2d 278, p. 283 where the Court said: 'There are authorities to the effect that a father's remarriage should not affect adversely the support rights of the issue of his first marriage, cf. Phillipi v. Phillipi, 148 Fla. 393, 4 So.2d 465, and that any such children are in a sense first mortgagees of the father's earnings or other resources. However, the better view appears to be that the Court should look at the Entire situation as it exists, and predicate every support order on the theory that All parties entitled to support should receive awards in fair proportions in the light of the particular circumstances, cf. Krause v. Krause, 282 N.Y. 355, 26 N.E.2d 290.'

Indeed, this Court in Matter of Santa Clara v. Hughes, 43 Misc.2d 559, p. 567, 251 N.Y.S.2d 579, 588, quoted the language of Werner v. Werner, supra, with approval and said: 'Moreover, in determining the amount the respondent shall be required to pay for the support of his minor children, the Court cannot ignore the additional responsibilities which have come to the respondent as a result of his second...