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RUTH MILLNER v. ACHITOB MILLNER (05/15/69)

SUPREME COURT OF NEW YORK, SPECIAL TERM, NEW YORK COUNTY 1969.NY.41565 <http://www.versuslaw.com>; 301 N.Y.S.2d 250; 60 Misc. 2d 122 May 15, 1969 RUTH MILLNER, PLAINTIFF,v.ACHITOB MILLNER, DEFENDANT Julius Zizmor for plaintiff. Beldock, Levine & Hoffman (Myron Beldock of counsel), for defendant. Matthew M. Levy, J. Author: Levy (I) The plaintiff -- successful in her suit before me for a separation on the ground of inadequate support and abandonment -- has moved to amend the findings made and the judgment rendered after trial so as to increase the allowances granted to her. In her submission, the plaintiff alleges that her husband is a person of considerable wealth and income, and argues that I overlooked that factor in my decision. I did not. The fact is that, in her desire to obtain the result sought, the plaintiff has fallen into the error of de-emphasizing entirely the preseparation standard of living of the parties -- and the authorities are agreed that this cannot be done. Thus, in Hearst v. Hearst (3 A.D.2d 706, affd. 3 N.Y.2d 967) noting (of course) that there were other factors also to be considered, the court held that: "A wife is not entitled to share in a husband's income as such, but is entitled to support on the basis of the established standard of living, if otherwise reasonable, within the income of the husband. * * * Plaintiff shows on this record, and in her argument, only that the husband has an income many times larger than the permanent alimony allotted to her. That is not enough." In Borchard v. Borchard (5 A.D.2d 472) the defendant was a man of considerable worth (p. 477). Nevertheless, the Appellate Division substantially reduced the amounts granted by the trial court in the judgment of separation since it appeared that the awards were based upon findings related to defendant's assets and earning capacity. This was held to be erroneous because (as theretofore stated in Hearst, supra), "plaintiff is not entitled


Matthew M. Levy, J.

Author: Levy

(I)

The plaintiff -- successful in her suit before me for a separation on the ground of inadequate support and abandonment -- has moved to amend the findings made and the judgment rendered after trial so as to increase the allowances granted to her.

In her submission, the plaintiff alleges that her husband is a person of considerable wealth and income, and argues that I overlooked that factor in my decision. I did not. The fact is that, in her desire to obtain the result sought, the plaintiff has fallen into the error of de-emphasizing entirely the preseparation standard of living of the parties -- and the authorities are agreed that this cannot be done.

Thus, in Hearst v. Hearst (3 A.D.2d 706, affd. 3 N.Y.2d 967) noting (of course) that there were other factors also to be considered, the court held that: "A wife is not entitled to share in a husband's income as such, but is entitled to support on the basis of the established standard of living, if otherwise reasonable, within the income of the husband. * * * Plaintiff shows on this record, and in her argument, only that the husband has an income many times larger than the permanent alimony allotted to her. That is not enough."

In Borchard v. Borchard (5 A.D.2d 472) the defendant was a man of considerable worth (p. 477). Nevertheless, the Appellate Division substantially reduced the amounts granted by the trial court in the judgment of separation since it appeared that the awards were based upon findings related to defendant's assets and earning capacity. This was held to be erroneous because (as theretofore stated in Hearst, supra), "plaintiff is not entitled to share in the husband's income as such. The burden assumed by plaintiff was to establish the standard of living of the parties within the income of the husband. In this case that burden has been barely sustained" (p. 479).

And so in the case at bar. That the plaintiff here has completely ignored this criterion is peculiarly pointed up in the suggested findings of fact, conclusions of law and judgment submitted by her for my signature. Throughout, the plaintiff repeatedly noted the defendant's means and income, and no mention whatsoever was made of the "'same style and in the same manner' of living" before the parties came to a parting of the ways (Shapiro v. Shapiro, 8 A.D.2d 341, 342). Since I took this basic factor into account (among others as well, including that of the plaintiff's needs), I did not accept her proposed findings, conclusions and judgment as presented, but made the appropriate corrections therein, and, as thus modified, they became the formal decision and final judgment which I signed (CPLR 4213; 5016, subd. [c]). Other authoritative cases are to the same effect and I see no need to do more than cite them (Tirrell v. Tirrell, 232 N. Y. 224, 230; Stahl v. Stahl, 16 A.D.2d 467, 468; Patton v. Patton, 5 A.D.2d 860; cf. Phillips v. Phillips, 1 A.D.2d 393, 398, affd. 2 N.Y.2d 742).

It is of applicable moment to note that, in the Borchard case (supra) the Appellate Division pointed out (pp. 477-478) that, "In general [the amount of alimony] is decided by consideration of several factors (cf. Phillips v. Phillips, 1 A.D.2d 393, 398). Usually, however, the balancing of these factors is of greater relevancy when awarding alimony from a modest income"; but, when the case involves "determining the amount to be paid by a husband of wealth and a substantial income, the other factors become of less importance and the search becomes to a large extent one to determine the standard of living of the parties."

Indeed, in Orenstein v. Orenstein (26 A.D.2d 928, 929, affd. 21 N.Y.2d 892) the Appellate Division said that "In the absence of special circumstances * * * a former matrimonial standard of living based on capital expenditures is not a proper basis for permanent alimony." There are no relevant special circumstances here, except that I went so far as to consider the probability that these parties (as do many parents of children attending schools of higher learning) did "forego, to some extent, otherwise desired financial benefits from their own resources in favor of their children's education." (Winkler v. Winkler, 13 A.D.2d 924, affd. 11 N.Y.2d 693); and I took cognizance of the fact that the elder son of the parties had become largely self-supporting since the defendant's abandonment of the plaintiff. Accordingly, I fixed the amount of the alimony to be paid the plaintiff somewhat above the proven standard of living of the parties prior to the separation. It is not to be assumed, therefore, that, in fixing the payments required to be made to her and in her behalf, I ignored the defendant's capacity to pay, as proved. Bearing in mind what has been shown by way of evidence -- as distinguished from what the parties have alleged -- the factors referred to in section 236 of the Domestic Relations Law, as indicated in the formal findings of fact signed by me, have been my guidelines.

(II)

The learned Justice presiding in the motion part in Kings County (before venue herein was changed to New York County) awarded the plaintiff a certain sum for services to be rendered by her attorney, which sum was to include the trial of the issue of plaintiff's right to a separation, and was without prejudice to a further application by the plaintiff to the trial court for an additional allowance. Such further award was granted by me after the trial, and the plaintiff, complaining of its alleged inadequacy, also seeks to amend the decision and judgment in that regard.

Subdivision (a) of section 237 of the Domestic Relations Law provides, among other things, that "the court may direct the husband * * * to pay such sum or sums of money to enable the wife to carry on * * * the action * * * as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties." I recognize, of course, that "Included particularly within the 'circumstances' to be considered are * * * the income and means of the husband" (Wood v. Wood, 21 A.D.2d 627, 630).

But, in fixing the allowance in this case, there are several other elements that cannot be ignored. Among them are (1) the necessity, as against the actual motive, for the litigious process undertaken; and (2) the reasonable value of the particular service rendered.

In the light of the allegations contained in the plaintiff's motion papers, I reviewed the record, both in Kings County and here. Keeping in mind the proven facts and all the factors involved, I am of the opinion that the award is adequate, and my conclusion is that no change is warranted.

(III)

The plaintiff also objects to the phrase in the judgment (inserted by me after a recital of the prior proceedings in the case and before the decretal provisions) that "it is now on motion of Julius Zizmor, Esq., attorney for the plaintiff", that certain things are "Ordered, Adjudged and Decreed", including the granting to the plaintiff of a judgment of separation (on two of the three grounds sued upon by her), providing for certain alimony (not as much as prayed for by the plaintiff), directing the payment of additional counsel fees to the plaintiff's attorney (not in the amount requested by him), and requiring the defendant to do certain other things and make other payments (not all in the manner or to the extent demanded by the plaintiff).

The plaintiff contends that, because the proposed judgment was not accepted without change and not signed as submitted by her, but was corrected and modified in several respects by the court, the variance makes improper the recital that ...


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