Winkler v. Winkler

• Decision Date: 07 December 1960
• Citation: 207 N.Y.S.2d 940,25 Misc.2d 938
• Parties: Marie F. WINKLER, Plaintiff, v. Frederick F. WINKLER, Defendant.
• Court: New York Supreme Court

Page 940

207 N.Y.S.2d 940

25 Misc.2d 938

Marie F. WINKLER, Plaintiff, v. Frederick F. WINKLER, Defendant.

Supreme Court, Special and Trial Term, New York County, Part XXIX.

Dec. 7, 1960.

Rothenberg, Atkins & Koss, New York City, for plaintiff.

George C. Levin, New York City, for defendant.

ISIDOR WASSERVOGEL, Special Referee.

Plaintiff seeks a separation on the ground of abandonment and alimony at the rate of $40,000 per annum.

There is no dispute between the parties as to the fact that defendant left plaintiff and their marital abode under circumstances which require the Court to grant plaintiff a judicial decree of separation. The principal issue to be resolved here, therefore, is the amount of alimony to be awarded for plaintiff's support and for the support and maintenance of the two infant issue of the marriage.

Plaintiff and defendant are attorneys and have been married for more than twenty years. They have two sons, ages nineteen and eleven, who attend an out-of-town college and private school, respectively. The credible proof and documentary evidence show that for the past five years, defendant's gross income from his practice of law averaged approximately $43,000 per year, with a low of $34,000 and a high of $52,000. In 1959, this income amounted to $41,000. In addition to his earning potential, the record establishes that defendant has marketable securities valued at $7,800 and other assets totalling approximately $11,000 more. The proof also indicates that certain of defendant's expenses, incurred as a result of his practice of law, are paid by the partnership of which he is a member.

Plaintiff testified that she and her husband were accustomed to living on a scale which cost them approximately $45,000 per year. In the opinion of the Court, the credible evidence fails to prove that the parties here involved maintained the grandiose manner of living which plaintiff sought to establish upon the trial. In any event, the former standard of living of parties involved in a matrimonial action, which standard in this case obviously was maintained by them only by their expenditure of practically all of defendant's capital reserve, by the exhaustion of his borrowing possibilities and by dint of their sacrifice of any opportunity to save any monies is not binding upon the Court as a measure of support to which plaintiff is now entitled. In fixing alimony, it is incumbent upon the Court to consider, among other things, the wife's independent resources, the needs of both parties, their respective tax burdens and other financial obligations, and then to make a realistic attempt to balance the wife's needs and her independent means, if any, 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; Rosen v. Rosen, 18 Misc.2d 257, 259, 193 N.Y.S.2d 29, 31).

The credible testimony and documentary evidence show that in addition to plaintiff having an undetermined but valuable earning capacity as a member of the Bar of this State, she owns securities valued at almost $15,000, $2,500 worth of stock in a mutual fund, life insurance having a loan value of $2,000, additional securities valued at $13,000 in a joint account with her mother, and bank accounts in excess of $2,400. Furthermore, in 1959, she sold and reinvested part of the proceeds from the sale of securities which were then valued at $23,000. She also owns a building at 18 West 30th Street, New York City, assessed at $35,000, which has a gross rental income of approximately $11,000 per annum.

In the light of these independent assets, the Court must appraise plaintiff's present needs as well as consider the needs and expenses of defendant. Included therein, as above noted, is the tax...