Sacks v. Sacks

• Decision Date: 20 June 1966
• Citation: 26 A.D.2d 575,271 N.Y.S.2d 358
• Parties: Melvin SACKS, Appellant-Respondent, v. Alvia SACKS, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 358

271 N.Y.S.2d 358

26 A.D.2d 575

Melvin SACKS, Appellant-Respondent, v. Alvia SACKS, Respondent-Appellant.

Supreme Court, Appellate Division, Second Department.

June 20, 1966.

Before BELDOCK, P.J., and BRENNAN, HILL, RABIN and HOPKINS, JJ.

MEMORANDUM BY THE COURT.

In an action for separation, in which the defendant wife counterclaimed for separation, the parties cross appeal as follows from a judgment of the Supreme Court, Nassau County, entered August 31, 1965 after a nonjury trial, which (1) dismissed the complaint and counterclaim upon the merits; (2) decreed that exclusive possession of the marital home owned by the parties as tenants by the entirety not be awarded to either party; (3) decreed that exclusive custody of the infant issue not be awarded to either party but that, so long as the parties remain living separate and apart, the infant may reside with defendant; (4) directed plaintiff, pursuant to section 236 of the Domestic Relations Law, to pay to defendant $300 a week for her and the infant's support and maintenance, to be allocated as follows: $250 for defendant and $50 for the infant; and (5) directed plaintiff to pay an additional counsel fee of $1500 for services rendered to defendant:

(a) Plaintiff appeals from so much of the judgment as (1) dismissed the complaint on the merits; (2) awarded $250 a week for defendant's support and maintenance; (3) awarded $1500 as an additional counsel fee; (4) failed to adjudicate that defendant abandoned plaintiff without just cause; and (5) failed to award plaintiff a separation decree.

(b) Defendant appeals from so much of the judgment as (1) dismissed the counterclaim; (2) denied her exclusive possession of the marital home; (3) denied her exclusive custody of the infant; (4) granted her only $300 a week for her and the infant's support and maintenance; and (5) directed the award of $1500 as an additional counsel fee.

Judgment affirmed insofar as appealed from, without costs.

The trial court found as follows: Defendant left the marital domicile without justification and without plaintiff's consent. She did not sustain her burden of proof in her claim as to cruel and inhuman conduct on his part before she left the marital domicile. However, his conduct and relations with another woman, after defendant had left the marital domicile, while not sufficient to justify an award of a separation in her favor, were such as to bar a judgment of separation in his favor.

In our opinion, upon the findings herein, which this court would not be justified in reversing (Boyd v. Boyd, 252 N.Y. 422, 429, 169 N.E. 632, 634), the trial court did not commit error in dismissing the complaint and the counterclaim (cf. Murphy v. Murphy, 296 N.Y. 168, 171--172, 71 N.E.2d 452, 454; Vernes v. Vernes, 232 App.Div. 707, 247 N.Y.S. 798; Nilsen v. Nilsen, 16 Misc.2d 396, 183 N.Y.S.2d 210; Axelrod v. Axelrod, 2 Misc.2d 79, 85, 150 N.Y.S.2d 633, 638; Russ v. Russ, 3 A.D.2d 888, 161 N.Y.S.2d 696, affd. 4 N.Y.2d 743, 171 N.Y.S.2d 862, 148 N.E.2d 911).

Insofar as the award of alimony for defendant's support is involved, it must be noted that section 236 of the Domestic Relations Law provides that, in a separation action, '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. * * * Such direction may be made * * * notwithstanding that the court refuses to grant the relief requested by the wife (1)...