Septuagenarian v. Septuagenarian

• Decision Date: 26 December 1984
• Citation: 126 Misc.2d 699,483 N.Y.S.2d 932
• Parties: In the Matter of Rose SEPTUAGENARIAN * , Petitioner, v. David SEPTUAGENARIAN *, and James A. Krauskopf, Administrator/Commissioner of Human Resources Administration, New York City Department of Social Services, Respondents.
• Court: New York Family Court

Page 932

483 N.Y.S.2d 932

126 Misc.2d 699

In the Matter of Rose SEPTUAGENARIAN ^*, Petitioner, v. David SEPTUAGENARIAN *, and James A. Krauskopf, Administrator/Commissioner of Human

Resources Administration, New York City Department of Social

Services, Respondents.

Family Court, City of New York,

Queens County.

Dec. 26, 1984.

Debevoise & Plimpton, Andrew A. Quartner, New York City, of counsel (Ellice Fatoullah, New York City, co-counsel), for petitioner.

Frederick A.O. Schwarz, Jr., Corp. Counsel, by Joseph M. Armstrong, Sp. Asst. Corp. Counsel, New York City, Rhoda Rawson, Jamaica, of counsel (Henry M. Adler Gail Kenowitz, Kew Gardens, for respondent David Septuagenarian.

Dennis Mulligan, and James Capoziello, Jamaica), for respondent James A. Krauskopf, as Commissioner of Social Services.

DECISION

JEFFRY H. GALLET, Judge.

FACTS

Petitioner requests support of $1,125 a month from her husband of 50 years. She convincingly supports her entitlement to that amount, in addition to her own monthly Social Security payment, by testimony and other evidence showing that it is the minimum amount required to maintain her modest standard of living.

This is not a normal adversarial support proceeding between estranged spouses. To the contrary, petitioner remains devoted to her husband and his care and visits him several times a week at the nursing home where he now resides.

Respondent David Septuagenarian was not able to appear in court to participate in this proceeding due to his ill health and was represented by a guardian ad litem and court appointed counsel. On his behalf, apparently to avoid the possibility of his waiving medicaid benefits, they did not oppose the petition but stopped short of supporting it.

David Septuagenarian's income consists entirely of a pension of $375 and Social Security benefits of about $800 a month. Prior to his illness and confinement to a nursing home, those funds, combined with petitioner's Social Security benefits of less than $400 a month, paid their joint expenses. The Commissioner of Social Services, under contract with the federal government, pursuant to Social Services Law section 363-b, has determined that virtually all of respondent's income should be used to partially reimburse the state for its expenditures for his care, medical attention, housing and food. 18 N.Y.C.R.R. 360.5.

QUESTION

Does an institutionalized spouse, receiving public assistance under the medicaid program, which requires that substantially all of his income be applied to his support and medical care, have sufficient means to support his or her spouse?

SPOUSE SUPPORT

The Family Court has original jurisdiction over support proceedings between spouses. F.C.A. § 411. The Family Court Act requires a spouse to pay fair and reasonable spousal support, "having due regard to the circumstances of the respective parties" (F.C.A. § 412) and presumes that she or he has sufficient means to do so (F.C.A. § 437). Here, the burden of proving insufficient means falls on the Commissioner.

The Commissioner posits that the husband is receiving medicaid, a form of public assistance, and is, as a matter of law, incapable of supporting either himself or his spouse. He further argues that the husband's medical and living expenses are far greater than his income and that all of his income must be applied to those expenses, before any deduction for the support of his spouse. The petitioner does not dispute the Commissioner's facts but avers that the legislature intended to exclude spouse support payments from the amount a medicaid recipient must pay to reimburse the state for his or her own support. SSL § 366(2)(a)(7).

THE SOCIAL SERVICES LAW

The Social Services Law sets forth the medicaid eligibility requirements and exemptions from the requirement that all of a medicaid recipient's income be applied to the cost of her or his care. SSL § 366. Section 366(2)(a)(7) of that statute exempts "payments for support of dependents required to be made pursuant to court order ..." The petitioner argues that the plain language of the statute specifically provides for the issuance of an order of support as she requests. The Commissioner The legislature, to assist courts in statutory interpretation, has adopted a textural treatise on the construction and legal interpretation of statutes. Statutes, McKinney's Consolidated Laws of New York, Vol. 1. That treatise instructs us, among other things, to look first to the natural and obvious meaning of the words used (Statutes § 94); that we may depart from the literal construction of those words to sustain the legislature's intent (Statutes § 111); and to avoid an interpretation which would cause hardship or injustice (Statutes § 146). It is within that framework that we must interpret section 366(2)(a)(7).

counters that the statute applies to orders of support already issued at the time the medicaid recipient is found eligible for assistance. Although an interpretation of the statute is pivotal to the resolution of this controversy, there is neither case law nor legislative history upon which to rely for guidance.

There are two important public policy issues which must have faced the legislature when the statute was drafted. However, except for the words of the statute itself, we have no indication of the legislature's position on either.

The first stems from Mr. Septuagenarian's status as a public assistance recipient. Since the Commissioner intends to use Mr. Septuagenarian's assets to reduce the public's burden for his support, it can be argued that it is the public which pays any support granted petitioner. The medicaid rules now clearly provide for a portion of an institutionalized spouse's income equal to the difference between his or her spouse's actual income and the amount that spouse would receive on public assistance, if the spouse's income falls below the public assistance level, to be applied to the dependent spouse's support. Under that rule petitioner would, essentially, be granted public assistance at the same level as others requiring it. However, if she receives support based on her standard of living, it would be measured by her prior life style rather than the statutory guidelines applicable to those on public assistance. The net affect would be that the overall cost to the public for the support and care of both Mr. and Mrs. Septuagenarian will be more than it would be if both received maximum public assistance benefits.

On the other hand, to deprive women, and particularly women of petitioner's generation who, in many cases, were denied an equal opportunity to fulfill their potential in the employment market and are, therefore, dependent on their husbands for support, access to their husbands' pension and assets in their later years effectively sentences many of them to tremendous hardship and a complete disruption of their lives at a time when they are extremely vulnerable.

We must note that an overwhelming majority of married women are younger than their husbands. In addition, actuarial tables tell us that women live longer than men. Pattern Jury Instructions, Vol. 1 (2d ed 1983 Cum.Supp.), pages 269-271. (For example, a woman of 70 will outlive her 75 year old husband by more than eleven years. Id. at p. 269.) From those facts, together with the common knowledge that medical costs for many illnesses of old age are beyond the financial means of most American families, we can reasonably draw the conclusion that husbands are more...