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JANET LEVINE v. MORRIS LEVINE (10/08/68)

SUPREME COURT OF NEW YORK, SPECIAL TERM, KINGS COUNTY 1968.NY.43008 <http://www.versuslaw.com>; 293 N.Y.S.2d 1000; 57 Misc. 2d 978 October 8, 1968 JANET LEVINE, PLAINTIFF,v.MORRIS LEVINE, DEFENDANT Di Falco, Field, Florea & O'Rourke (Arthur N. Field of counsel), for defendant. Rothenberg & Atkins for plaintiff. Louis B. Heller, J. Author: Heller


Louis B. Heller, J.

Author: Heller

 Defendant husband moves for an order modifying a judgment of separation dated December 9, 1964 which provides for payment of alimony to plaintiff wife in the sum of $190 per week allocated $130 for the wife and $30 per week for the support of each of two sons of the marriage. Plaintiff cross-moves for an increase.

Heretofore, by order dated June 8, 1967, Mr. Justice Ventiera granted defendant's motion to modify by reducing the support for the wife to $105 a week, and continuing the $60 per week for the two children, now aged 20 and 17 1/2 years respectively.

On appeal, the Appellate Division (29 A.D.2d 769) remitted the entire matter to this court for the purpose of conducting a plenary hearing de novo as to the present financial resources and needs of the parties and the children and all other facts relevant to whether any modification of the alimony and support provisions of the judgment of separation are warranted.

Pursuant to that directive, a hearing was held on May 27, 1968. The defendant is a certified public accountant. He produced his income tax returns for the years 1964 through 1967. These tax returns reflect his total income to be as follows:

1964 $45,210

1965 $29,243

1966 $15,236

1967 $12,577.

The reason for the dramatic drop in defendant's income is that starting in 1965 (almost immediately after the judgment of separation had been entered), the Internal Revenue Service commenced an exhaustive investigation relating to the defendant's preparation of tax returns for his various clients. The investigation culminated in an indictment in 1967, charging that he had allegedly assisted his clients in preparing false tax returns.

This indictment is presently pending and the criminal trial thereof will probably take place in the near future. As demonstrated by defendant's exhibits at the hearing, the defendant lost 27 clients who had paid him fees in excess of $33,000. The events which led to the defendant's catastrophic diminution of his earning capacity are of such a nature that in all probability it will continue to decline, and should the indictment result in a conviction, his ability to pursue his profession may well come to an end.

The plaintiff seeks to counter the clear and convincing proof of defendant's loss of earnings by pointing out to the court that defendant has substantial liquid assets with which to continue to pay the support previously ordered. The defendant testified at the hearing that his assets consisted of savings accounts totaling $63,000; United States Savings Bonds amounting to $62,500; Con Ed stock valued at $6,600; and $4,800 in a checking account. All in all, defendant's ready cash assets amount to approximately $140,000, in addition to which he owns a 7 1/2-room house where he resides alone, having an equity of about $20,000; and a 1967 Cadillac automobile newly purchased for $6,000.

The position taken by the defendant is that he is entitled to a reduction in alimony payments in the exercise of the court's discretion by reason of his drastically reduced income without regard to his assets. Plaintiff, on the other hand, contends that where, as here, the defendant husband has very substantial liquid assets, which have in nowise been diminished since the entry of judgment four years ago, and continues to maintain the same standard of living he maintained at the time the judgment of separation was entered, there is no basis for a reduction in alimony, even though there has been a reduction in income, especially so where the reduction is attributed to defendant's own malfeasance.

It is further contended by plaintiff that she is entitled to an increase in alimony without regard to any change in defendant's income, when, as in the case at bar, the defendant's cash assets, which were accumulated during the long marriage of the parties, are more than sufficient to pay for the increased needs. Plaintiff claims the money was put aside, to use a cliche, as an ...


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