Phillips v. Phillips

Decision Date24 April 1956
Citation150 N.Y.S.2d 646,1 A.D.2d 393
PartiesGrace R. PHILLIPS, Plaintiff-Appellant, v. George M. PHILLIPS, also known as Martin George Phillips, Defendant-Respondent.
CourtNew York Supreme Court — Appellate Division

Walter S. Beck, New York City, of counsel (Louis Nizer, New York City, on the brief; Phillips, Nizer, Benjamin & Krim, New York City, attorneys), for plaintiff-appellant.

Irwin Karp, New York City, of counsel (Harold Epstein, New York City, on the brief; Hays, St. John, Abramson & Heilbron, New York City, attorneys), for defendant-respondent.

Before BOTEIN, J. P., and RABIN, COX and FRANK, JJ.

BOTEIN, Justice.

An otherwise routine application for examination during trial poses a question that has not yet been presented foursquare to any appellate court in this state.

Plaintiff wife, having been granted an interlocutory judgment of divorce against defendant husband, moved during trial to examine the husband concerning his income and assets. Thereupon the husband moved to examine the wife as to their standards of living during the marriage, her contributions thereto, and her property, assets and current income. Special Term granted the motion of each party for examination of the other. The wife appeals, insisting that her present assets and current income are, as a matter of law, wholly irrelevant to any determination of the amount of alimony to be fixed in the final decree.

it is true that during marriage a husband is obliged to support his family in accordance with his financial ability, and a wife is not legally obligated to use her independent assets to maintain her husband and children. Young v. Valentine, 177 N.Y. 347, 352, 69 N.E. 643, 644. She may choose, however, to contribute towards raising their joint standard of living. 'If, with the aid of her funds, they have been living beyond what he alone could afford, then, in event of a separation, he should not be required to support her on that basis wholly out of his own income or property.' Van Voorhis, J., in Judd v. Judd, 1 Misc.2d 965, 59 N.Y.S.2d 680, 681. There can be no question as to the propriety of an inquiry into the contributions the wife has made towards the standard of living of the parties during their marriage. Query, and more troublesome: In determining the amount of permanent alimony to be paid by a husband, should the court also consider the current income and assets of the wife who obtained the divorce?

at common law it was held that 'the very being or legal existence of the woman is suspended during the marriage' (1 Blackstone, Commentaries on the Laws of England 442 [1758]), and that the husband, as the one is control of his wife's property and income, was obligated for her debts and her support. The convention that a divorced husband is responsible for the full and unrelieved support of his wife had its origin back in the days when courts in England could grant no absolute divorce--only a limited divorce, or what we recognize as separation. Since the marriage survived the limited divorce, the husband at fault still retained control of his wife's property; and any support provisions for the wife would be borne out of their joint assets and income. Therefore, there was no practical reason for separately taking cognizance of the wife's property in fixing allowances for support as an incident to a limited divorce.

This view undoubtedly carried over after the legislature made statutory provision for the absolute divorce which had not been obtainable at common law. Absolute divorce released the parties from the mutual obligations imposed by marriage, but society demanded that even a divorced wife should be appropriately maintained by her ex-husband so that she would not become a charge on the community. Hence, alimony was created as a statutory substitute for the marital right of support. Wilson v. Hinman, 182 N.Y. 408, 410, 75 N.E. 236, 237, 2 L.R.A.,N.S., 232.

The position of the wife has changed, however. Her role as a frail, sheltered, ineffectual person--if ever authentic--is as much a thing of the past as her crinoline and whalebone. By statute she has been given exclusive right to hold her own property, § 50, Domestic Relations Law, and her coequal status with her husband has been recognized in law as well as in fact.

'From her old position as an identity merged in him and not separable from him, she has advanced to a position of independence in most respects fully equal with him. Whereas in the period when the law of alimony was largely shaped and fixed she had no property apart from her husband and had no means of securing help if she left him or called him to a legal accounting of his husbandry, today she has her separate property, and ways and opportunities at least as many, if not more, of earning a livelihood outside the home and independently of her spouse.' (The Changing Social Setting of Alimony Law, 6 Law and Contemporary Problems, 186, 192-193).

The number of married women who work in gainful occupations has increased twenty-eight-fold, from 515,260 in 1890 to 14,305,000 in 1954, so that despite continued family responsibilities, almost one third of all married women are now in the labor force (Historical Statistics of the U. S. 1789-1945, p. 63; 1955 Statistical Abstract of the United States, p. 195.) Millions of women own their own property. With the advance in the legal and social status of the married woman have come concomitant responsibilities.

'* * * until recent years, a divorced wife had little prospect of being able to work and earn a livelihood, and it was essential to a well-ordered society that she be appropriately maintained by her estranged husband so that she would not become a charge on the community. Times have now changed.

The broad, practically unlimited opportunities for women in the business world of today are a matter of common knowledge. Thus, in an era where the opportunities for self-support by the wife are so abundant, the fact that the marriage has been brought to an end because of the fault of the husband does not necessarily entitle the wife to be forever supported by a former husband who has little, if any, more economic advantages than she has.' Kahn v. Kahn, Fla.1955, 78 So.2d 367, 368.

As has been pointed out, alimony is a statutory creation. Romaine v. Chauncey, 129 N.Y. 566, 571, 29 N.E. 826, 827, 14 L.R.A. 712. Such powers as a court may have over divorce and its postoperative problems are conferred upon it by the legislature. 'Prior to the year 1787 the courts of this State had no jurisdiction of the subject of divorce' Erkenbrach v. Erkenbrach, 96 N.Y. 456, 458. While the legislature has in general terms vested the courts with broad discretion to make such directions for support and maintenance 'as justice requires', § 1170, C.P.A., it has also laid down more specific standards. It has directed the courts to have due regard to 'the circumstances of the respective parties' (emphasis supplied) in providing for the support of the plaintiff in orders of judicial separation, § 1164, C.P.A., in orders for alimony pendente lite, § 1169, C.P.A., and in final judgments of divorce dissolving the marriage, § 1155, C.P.A. The norms thus enunciated require the courts to consider not only the standard of living the...

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  • Phillips v. Phillips
    • United States
    • New York Supreme Court
    • October 15, 1958
    ...but her application in that regard should be and is rejected. Taking into account the relevant factors indicated in Phillips v. Phillips, 1 A.D.2d 393, 150 N.Y.S.2d 646, (per Botein, J., for the court) I conclude that the plaintiff is entitled to receive $85 per week as alimony, which the d......
  • Leibowits v. Leibowits
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    • May 16, 1983 that members of the former family group are not "destroyed by crushing economic and psychological pressures" (Phillips v. Phillips, 1 A.D.2d 393, 397, 150 N.Y.S.2d 646, affd. 2 N.Y.2d 742, 157 N.Y.S.2d 378, 138 N.E.2d 738). Absent the authority provided in section 234 of the Domestic Rel......
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    • January 13, 1972
    ...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 whi......
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