Sterlace v. Sterlace
| Citation | 382 N.Y.S.2d 191,52 A.D.2d 743 |
| Parties | Robert A. STERLACE, Respondent, v. Barbara A. STERLACE, Appellant. |
| Decision Date | 15 April 1976 |
| Court | New York Supreme Court Appellate Division |
William B. Mahoney, Buffalo, for appellant.
Vincent J. Sorrentino, Buffalo, for respondent.
Before MARSH, P.J., and SIMONS, DILLON, GOLDMAN and WITMER, JJ.
Defendant was granted a separation from plaintiff on the grounds of abandonment. In this appeal she urges that the award of alimony is insufficient; that the trial court erred in limiting alimony to a one-year period and abused its discretion in denying her application for counsel fees.
The judgment appealed from directs, inter alia, that plaintiff pay to defendant alimony of $300 per month for 'one (1) year commencing July 1, 1975 and to terminate June 1, 1976' and orders that defendant 'pay her attorney all necessary and reasonable fees for services'. Not contested is the court's award of defendant of the use and possession of the marital premises, including the household furnishings, and the directive that plaintiff pay $200 per month for the support of one child in defendant's custody.
The judgment requires that the defendant be responsible for the payment of the mortgage, taxes and insurance for the marital premises. The monthly principal and interest mortgage payment is $139.42 and the average monthly expense for taxes and insurance is $54.31. It is only equitable that since the property is owned by the entirety the plaintiff should contribute to these expenses. The award of alimony should be increased, therefore, to $395 per month. We note from the record that requiring the plaintiff to pay this additional sum will not work a financial hardship upon him.
There is no basis in the record, however, for the elimination of alimony In futuro. Whether, upon a change of circumstances, alimony should be eliminated or reduced should not now be decided (see Stolls v. Cabot, 45 A.D.2d 1014, 358 N.Y.S.2d 49). Where there is a need for support, a husband must 'carry the inescapable duty which is his, not consensually but by common law and statute, to provide support for the wife' (McMains v. McMains, 15 N.Y.2d 283, 288, 258 N.Y.S.2d 93, 98, 206 N.E.2d 185, 189). 'A wife is not entitled to a share of her husband's income as such . . . but she must have minimum support.' (McMains v. McMains, supra, at p. 288, 258 N.Y.S.2d at p. 99, 206 N.E.2d at p. 189.)
Similarly, the record is devoid of any justification for...
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