Roscini v. Roscini
| Decision Date | 13 April 1973 |
| Parties | Muriel M. ROSCINI, Respondent-Appellant, v. Lawrence ROSCINI, Appellant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Alderman, Alderman, Samuels & Schepp, Syracuse, Bernard Samuels, Rochester, for appellant-respondent.
Lowery & Mancuso, Syracuse, Tony Mancuso, Rochester, for respondent-appellant.
Before GOLDMAN, P.J., and DEL VECCHIO, MARSH, CARDAMONE and SIMONS, JJ.
The decretal paragraph providing for the wife's support included a direction that the defendant 'pay as additional alimony 12.5 percent of any bonus or additional compensation he may receive in a lump sum . . .'. This provision should be deleted for the reasons set forth in our decision in Tedrow v. Tedrow, 36 A.D.2d 686, 319 N.Y.S.2d 785. 'A wife is not entitled to a share of her husband's income as such nor is there a right to escalation as the husband prospers but she must have minimum support' (McMains v. McMains, 15 N.Y.2d 283, 288, 258 N.Y.S.2d 93, 99, 206 N.E.2d 185, 189). This separation decree by the force of statute and decisional law has, in effect, written into it a reservation of power to change and modify it if a court should determine in the future that changed circumstances require a modification (Karlin v. Karlin, 280 N.Y. 32, 19 N.E.2d 669). It is unwise to attempt in the judgment before us to make provision for the sharing of a prospective bonus which may in fact never be paid. The trial court properly determined that the wife should be furnished an automobile for her use, as had always been provided for her before her husband left her. It appears reasonable from the record that an automobile costing approximately $3,250 may well be the quality and style of vehicle she should have. The judgment should have directed that the husband provide a suitable automobile for the wife rather than to have required the payment of money. The decretal paragraph providing for a lump sum payment of $3,250 to the wife should be deleted and there should be substituted in its place a provision directing the husband to furnish to the wife a suitable automobile for her use. Except for the two modifications herein set forth, the judgment should be affirmed.
Judgment unanimously modified in accordance with Memorandum and as modified affirmed without costs.
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