Rosenstiel v. Rosenstiel

• Decision Date: 06 June 1967
• Citation: 280 N.Y.S.2d 624,28 A.D.2d 651
• Parties: Lewis S. ROSENSTIEL, Plaintiff-Appellant-Cross-Respondent, v. Susan L. ROSENSTIEL, Defendant-Respondent-Cross-Appellant. Susan L. ROSENSTIEL, Plaintiff-Respondent-Cross-Appellant, v. Lewis S. ROSENSTIEL, Defendant-Appellant-Cross-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 624

280 N.Y.S.2d 624

28 A.D.2d 651

Lewis S. ROSENSTIEL, Plaintiff-Appellant-Cross-Respondent, v. Susan L. ROSENSTIEL, Defendant-Respondent-Cross-Appellant.

Susan L. ROSENSTIEL, Plaintiff-Respondent-Cross-Appellant, v. Lewis S. ROSENSTIEL, Defendant-Appellant-Cross-Respondent.

Supreme Court, Appellate Division, First Department.

June 6, 1967.

R. M. Cohn, New York City, for plaintiff-appellant-cross-respondent.

W. S. Beck, New York City, for defendant-respondent-cross respondent.

Before BOTEIN, P.J., and CAPOZZOLI, RABIN, McNALLY, and McGIVERN, JJ.

PER CURIAM.

Judgment modified, on the law and the facts, to the extent of (1) deleting the first decretal paragraph in its entirety and in lieu thereof directing plaintiff to pay to defendant for her support for the period commencing on January 28, 1966, the sum of $96,000 annually, payable in twelve equal monthly installments on the first Monday of each month, at the residence of defendant or at such other place as she may designate in writing, the support accrued from January 28, 1966 to May 1, 1967 to be paid by plaintiff within fifteen days after the date of service of a copy of the order entered hereon with notice of entry, and (2) reducing the figure of $360,000 in the second decretal paragraph to $282,200, and directing that the latter sum be paid within thirty days after the date of service of a copy of the order entered hereon with notice of entry; and as so modified the judgment is otherwise affirmed, without costs or disbursements to either party.

The record supports the trial court's conclusion that defendant was not guilty of misconduct which would constitute grounds for separation or divorce. Nor was consideration De novo of that issue barred by the vendors' actions for necessaries instituted in the Civil Court. The judgment recovered in that court in the Bergdorf & Goodman Company action was obtained on grounds unrelated to the issue of misconduct; and in no other action in which that issue may have been involved has it been shown upon the record that a judgment was rendered (see Rudd v. Cornell, 171 N.Y. 114, 128, 129, 63 N.E. 823, 828; Bronxville Palmer v. State of New York, 18 N.Y.2d 560, 563, 277 N.Y.S.2d 402, 405, 223 N.E.2d 887, 889). The question of the effect of such a judgment is accordingly not reached.

Section 236 of the Domestic Relations Law opens with the following provision: 'In any action or proceeding brought (1) during the lifetime of both parties to the marriage to annul a marriage or declare the nullity of a void marriage, or (2) for a separation, or (3) for a divorce, the court may direct the husband to provide suitably for the support of the wife as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties.' We agree with the trial court's rejection of the argument that this 'broad grant of discretionary power' (McMains v. McMains, 15 N.Y.2d 283, 289, 258 N.Y.S.2d 93, 99, 206 N.E.2d 185, 189; Brownstein v. Brownstein, 25 A.D.2d 205, 208, 268 N.Y.S.2d 115, 120), does not permit alimony where, as here, the husband's annulment complaint has failed. We think, however, that the alimony awarded by the trial court does not adequately reflect the pertinent circumstances, especially the marital standard of living and the extent of plaintiff's income, and that justice requires the increase herein directed. The services rendered by defendant's counsel will in our judgment be fairly compensated by the modification we have made.

All concur except BENJAMIN J. RABIN, J., who dissents in part in a memorandum and McNALLY and McGIVERN, JJ., who concur and dissent in part in a memorandum by McNALLY, J.

BENJAMIN J. RABIN, Justice (dissenting in part):

I dissent from the portion of this Court's determination which increases the provision for the support of the wife to $8,000 monthly ($96,000 yearly), before taxes. Trial Term awarded $2,400 monthly, after taxes, which amount is asserted to be the equivalent of $58,650 yearly, before taxes. I would affirm that award.

I realize that there is no way of fixing an amount for the support of a wife that could be said to be exactly correct. Arriving at an acceptable figure, particularly in a case of this kind presents great difficulties. However, once an amount has been fixed, it is less difficult to recognize whether it is sufficient in the circumstances. I believe the sum of $2,400 monthly, after taxes, which was fixed by the Trial Term, is quite sufficient to meet the husband's obligations in the circumstances of this case.

The award given here was made under Domestic Relations Law, § 236. The design of the Legislature in enacting § 236 is best stated by Justice Eager in Brownstein v. Brownstein where he says:

'The use of the phrase ('as justice requires') is clearly indicative of an intent to vest the court with a broad discretion, unfettered by "matter of law' requirements', so as to enable it to make such directions as are required in the interests of justice. (See Vanderbilt v. Vanderbilt, 1 N.Y.2d 342, 353, 153 N.Y.S.2d 1, 9, 135 N.E.2d 553, 558 supra)'. (25 A.D.2d 205, 207--208, 268 N.Y.S.2d 115, 120).

I do not think that justice was undermined when Trial Term allowed this defendant a mere $2,400 a month, after taxes. Such allowance puts her among those who are in the highest brackets in the country. There is no requirement that she get all that her husband can afford to give. Nor is there any requirement that the wife...