Rosen v. Rosen
| Decision Date | 09 June 1959 |
| Citation | 193 N.Y.S.2d 29,18 Misc.2d 257 |
| Parties | Bertha ROSEN, Plaintiff, v. Aaron ROSEN, Defendant. |
| Court | New York Supreme Court |
Erdheim & Armstrong, New York City, by Irving I. Erdheim, New York City, for plaintiff.
Parker, Duryee, Benjamin, Zunino & Malone, New York City, by Vincent J. Malone, Ellis M. Deull, New York City, for defendant.
ISIDOR WASSERVOGEL, Special Referee.
Plaintiff seeks a separation on the ground of abandonment, and the sum of $20,000 per annum for her support.
Upon the trial of this action, plaintiff established that on or about May 3, 1958, defendant left their home, removed his belongings and, since then, has not returned. Defendant offered no proof to rebut such evidence. It necessarily follows, therefore, that plaintiff is entitled to a judicial decree of separation.
The $20,000 per annum alimony sought by plaintiff was vigorously opposed by defendant, who, since the parties have separated, has voluntarily paid plaintiff $500 per month plus $262.50 for the monthly rent of the apartment formerly occupied by both parties and in which plaintiff now continues to reside. Defendant, a member of the bar, concededly is a man of rather substantial means, who, in the past three years, has earned upwards of $60,000 per annum. In 1957, his annual income was approximately $85,000, which dropped to $60,000 in the following year. There is no judicial or legislative sanction, however, of the popular theory that a wife is entitled to one-third of her husband's income, as, in effect, is sought here by plaintiff (Jacobs v. Jacobs, Dom.Rel.Ct.N.Y., 82 N.Y.S.2d 410).
No definite formula has been evolved whereby the amount of support to be awarded in all cases can be determined by the court with mathematical certainty. Theoretically, it should be fixed at an amount sufficient to maintain the wife 'in a manner fitting to her station in life' (Hearst v. Hearst, 3 A.D.2d 706, 159 N.Y.S.2d 753, affirmed 3 N.Y.2d 967, 169 N.Y.S.2d 36). It is well settled that one of the vital elements in determining this amount is the standard of living maintained by the parties prior to their separation (Patton v. Patton, First Department, 5 A.D.2d 860, 171 N.Y.S.2d 536; Hearst v. Hearst, supra). Contrary to plaintiff's contention, however, this is not the sole criterion to be considered by the court. A realistic attempt must be made to balance the wife's needs and her independent means, if any, for meeting them, with the husband's ability to pay (Phillips v. Phillips, 1 A.D.2d 393, 396, 150 N.Y.S.2d 646, 650, affirmed 2 N.Y.2d 742, 157 N.Y.S.2d 378).
In the instant action, plaintiff's testimony with respect to the standard of living of the parties is replete with vagueness, contradiction and uncertainty. Although plaintiff stated that she and defendant lived at the rate of '$2,200 per month,' she was unable to account satisfactorily for such alleged expenditure. An analysis of her testimony clearly indicates that plaintiff exaggerated the amount of monies used by the parties to maintain their home while they were living together is husband and wife. She admitted that approximately 'four, five hundred dollars' out of the $2,200 'house expense money' was left at the end of each month. Moreover, the credible testimony establishes that from this $2,200 which was purportedly put in a joint bank account each month by defendant, he drew $900 a month for his personal expenses, out of which he paid $55 a week for maid service. Upon the evidence before me, therefore, I hold that the true cost of maintaining a home for the parties prior to their separation and their so-called 'standard of living' therein averaged no more than $1,000 a month.
As above noted, in fixing alimony, it is part of the court's duty to consider the wife's independent resources (Phillips v. Phillips, supra). The credible proof adduced upon the trial shows that plaintiff had cash assets amounting to more than $10,000. In addition thereto, plaintiff receives an annual income of approximately $5,000 tax free, which will continue for another seven years. In the last two of these seven years, plaintiff will receive an aggregate sum of almost $32,000, free and clear of all taxes. Plaintiff also has a twenty-five per cent contingent interest in the fee of an income-producing property in Washington, D. C.
In light of these independent assets, it is now incumbent upon the court to examine into plaintiff's present needs as well as a consideration of the needs and expenses of defendant. Included therein is the tax burden which each of the parties will undoubtedly be compelled to assume when living separate and apart (Kraunz v. Kraunz, 293 N.Y. 152, 156, 56 N.E.2d 90, 91). Undoubtedly, this burden will rest most heavily upon defendant, who for the past several years has paid average yearly Federal and State income taxes in excess of $20,000, based on a joint return with plaintiff.
The largest single item of expense which plaintiff incurs is the cost of psychiatric analysis she has been undergoing for the past two and a half years. The charge therefor is $150 per week. No indication was offered by plaintiff as to how long such treatment may reasonably be expected to continue in the future. In addition to this medical expense, it appears from the record that plaintiff's fixed personal expenses, apart from the rent on the apartment which, as herein noted, has been paid by defendant to date, amount to approximately $140 per week. Significantly, $25 thereof is spent for taxi fares alone, $20 per week is devoted to piano and painting lessons which were begun only since her psychiatric treatment started, and $25 per week is paid to a maid who comes three times a week to clean the apartment now occupied by plaintiff alone.
Although the amount of temporary alimony is not determinative of the fact or quantum of the obligation to support, as it may be resolved after trial (Hearst v. Hearst, supra), nevertheless, it is significant that since the parties separated in May, 1958, plaintiff has accepted and lived on the $500 a month voluntarily paid to her by defendant for her personal living expenses (excluding rent). She stated that she owes no debts at the present time and nowhere in the record does it appear that plaintiff's standard of living has in any way declined since her separation from defendant and his voluntary support in the amount above stated. In fact, without any apparent need to encroach on funds other than those provided by defendant and without any discomfort or inability to live 'as usual', plaintiff has been able to continue such recent innovations as her music and art lessons, $16 a week expense for facials and...
To continue reading
Request your trial