In the Matter of Karen
Glover, Petitioner, v. George Glover, Respondent
** Fictitious names have been used for the
purpose of publication.
[NO
NUMBER IN ORIGINAL]
Family
Court of New York, Queens County
64
Misc. 2d 374; 314 N.Y.S.2d 873
October
8, 1970
HEADNOTES:
Husband and wife -- support -- wife's gross
misconduct towards husband warrants denial of
support on means basis -- husband is directed to
support wife on public charge basis for four-week
period -- wife's attorney is directed to submit
affidavit of services for award of fee.
1. A wife's
gross misconduct towards her husband warrants the
denial in the exercise of discretion, of support
for her on a means basis.
2. Although the
wife is fully able to support herself, the
husband is directed to support her on a public
charge basis for a four-week period, since 64
Misc. 2d 374, *; 314 N.Y.S.2d 873, **
at the moment
the wife claims not to have any income.
3. Despite the
denial of support to the wife on a means basis,
her attorney should be paid for his efforts and
he is directed to submit an affidavit of
services.
COUNSEL: David
Justin for petitioner.
Maltese &
Anastasi (Nicholas Maltese of counsel), for
respondent.
JUDGES: Isidore
Levine, J.
OPINIONBY:
LEVINE
OPINION: [*375]
[**874] Petitioner, a most attractive, articulate
and youthful looking woman, apparently in her
forties, but fiery, volatile, ruthless,
self-centered, cunning and uncompromising, sues
the respondent herein contending that since
November, 1969 he has refused and neglected to
provide fair and reasonable support for her.
Petitioner also contends that respondent was
physically abusive to her and in particular on
June 6, 1970 when without provocation he
allegedly kicked her in the lower part of her
spine, requiring X rays and medical treatment,
when all she did, she claims, was to ask him for
64 Misc. 2d 374, *375; 314 N.Y.S.2d 873, **874
her weekly
allowance.
Respondent, a
practicing attorney for 30 years vehemently
denies these allegations and claims that
petitioner has been guilty of such gross
misconduct that she is not entitled to support
from him on a means basis.
Petitioner and
respondent were married on May 20, 1962,
approximately eight years ago. There are no
children of the marriage.
While much of
the testimony was in sharp contradiction between
the parties, some critical issues were admitted
by petitioner. The court, however, has had the
special advantage of seeing, hearing and
observing the manner of the witnesses on the
stand, and evaluating their credibility.
[**875] From the
credible evidence adduced at the trial, the court
credits the testimony of respondent, and his
witnesses, including respondent's version of the
alleged assault on petitioner on June 6, 1970,
and finds that the petitioner did indeed grossly
misconduct herself toward her husband.
The court finds
that petitioner, who was obsessed with the desire
to be in business for herself despite the
respondent's repeated requests to her to give up
her business ventures and take care of the home,
and despite the fact that 64 Misc. 2d 374, *375;
314 N.Y.S.2d 873, **875
he had already
yielded to petitioner and given her no less than
$ 2,000 for her business ventures which he
opposed, went behind respondent's back and
approached several of his legal clients and
friends [*376] to loan her money or cosign loans
for her. (Petitioner admitted approaching at
least five whose names are in the record.)
In addition and
most reprehensibly the court finds that
petitioner told a number of respondent's clients
that he was not a good lawyer and that they
should not do business with him. (Petitioner
admitted that she may have made deprecating
remarks about her husband as a lawyer.)
Two witnesses,
both in the real estate business, professionally
engaged with respondent, testified to specific
instances of professional deprecation of
respondent by petitioner.
Petitioner
further provoked and exacerbated deteriorating
relationships with her husband by failing to keep
several appointments with her husband which were
vital to his business relationships with clients.
On several occasions respondent was compelled to
entertain clients alone at his home and cook the
dinner for them, since petitioner, who was aware
of the social engagements came home several hours
late, and on two occasions, corroborated by a
witness for respondent who was present as a
guest, came home at about 12 midnight. The 64
Misc. 2d 374, *376; 314 N.Y.S.2d 873, **875
testimony
evidences further social and business
relationships outside the home when petitioner
failed to show up on time and respondent was
required to entertain his clients and their wives
alone.
Further
exacerbations of the marital strain between the
parties were the result of petitioner's
preoccupation with animals which resulted in
dispossess proceedings against her and respondent
because of charges of barking emanating from the
apartment at all hours of the day and night
because of the urination and defecation by the
dogs on the terrace of this apartment (one of the
respondent's witnesses testified that
petitioner's home was a mess and that the dog
vomited in the living room when he was present in
the apartment on August 14, 1970, corroborating
in part testimony by respondent that the
apartment was constantly in a mess).
Adding up all of
this testimony, together with other testimony in
the record, the court concludes that the
petitioner's misconduct has been so gross as to
warrant a denial of her support by respondent on
a means basis. One who would destroy her husband
professionally and [**876] hence financially
ought not to be permitted to look to him for
support and share in his income on a means basis.
64 Misc. 2d 374,
*376; 314 N.Y.S.2d 873, **876
Relevant on this
issue of support are sections 236 and 200 of the
Domestic Relations Law.
Section 236 of
the Domestic Relations Law, insofar as
applicable, reads as follows: "In any action
or proceeding brought [*377] * * * (2) for a
separation * * * the court may direct the husband
to provide suitably for the support of the wife
as, in the court's discretion, justice requires,
having regard to the length of the time of the
marriage, the ability of the wife to be self
supporting, the circumstances of the case and of
the respective parties. * * * Such direction May
be made in the final judgment * * *
notwithstanding that the court refuses to grant
the relief requested by the wife * * * (2) by
reason of the misconduct of the wife; unless such
misconduct would itself constitute grounds for
separation or divorce; or (3) by reason of a
failure of proof of the grounds of the wife's
action or counterclaim." (Italics the
court's.)
Section 200 of
the Domestic Relations Law setting forth the
grounds for a separation, insofar as applicable,
reads as follows: "Cruel and inhuman
treatment * * * such that the conduct * * * so
endangers the physical or mental well being of
the plaintiff as renders it unsafe or improper
for the plaintiff to cohabit with
defendant."
64 Misc. 2d 374,
*377; 314 N.Y.S.2d 873, **876
It becomes
readily apparent from a reading of the above
statutes that the court may direct support for
the wife on a means basis even where the wife's
petition has been dismissed by reason of her
misconduct, unless such misconduct would itself
constitute a grounds for a separation or divorce
as where the cruel and inhuman treatment
endangers the physical or mental well being of
the other spouse.
Accordingly, the
court must deny support on a means basis where
the aggrieved spouse would be entitled to a
judgment of separation under section 200 of the
Domestic Relations Law, and may grant or deny
support on a means basis under section 236 of the
Domestic Relations Law in the court's discretion,
as justice requires, under the circumstances of
the case and of the respective parties. (See
<=1> Brownstein v. Brownstein, 25 A D 2d
205.)
While the court
finds that the conduct of the petitioner drove
the respondent to distraction, the respondent
failed to establish by medical or other evidence
that such misconduct so endangered his physical
or mental well being as would render it unsafe or
improper for petitioner to cohabit with
respondent, and accordingly the court is not
mandatorily required to deny petitioner support
on a means basis.
64 Misc. 2d 374,
*377; 314 N.Y.S.2d 873, **876
[**877] However,
the court does find that the petitioner's
misconduct was so grievous and loathsome that in
the exercise of discretion it orders no support
for petitioner on a means basis.
On the issue of
applicability of section 236 of the Domestic
Relations Law to section 412 of the Family Court
Act under [*378] which petitioner has proceeded
herein, see <=2> Matter of Steinberg v.
Steinberg (18 N Y 2d 492). See, also, <=3>
Matter of Loughlin v. Loughlin (58 Misc 2d 360)
where the court held that recent amendments to
section 236 of the Domestic Relations Law, e.g.,
that the court consider the length of time of the
marriage and the ability of the wife to be self
supporting in determining the amount of alimony
awarded, the circumstances of the case and of the
respective parties were applicable to the Family
Court.
Having denied
petitioner support on a means basis, the court
now turns to consideration of support of
petitioner on a public charge basis, should this
eventuate, despite the court's finding that the
petitioner is fully able to support herself. It
will be noted that the petitioner has had
excellent background as a sales representative,
interior decorator, and real estate saleswoman,
and is attractive, articulate and youthful.
However, since at the moment petitioner claims
not to have any income, the court directs her
support by respondent on a public charge basis
for a period not to exceed four weeks 64 Misc. 2d
374, *378; 314 N.Y.S.2d 873, **877
from the date
hereof for which purpose the attorneys for both
sides are directed to confer with the Department
of Social Services to agree upon a sum. Should
the attorneys fail to come to agreement within
one week after receipt of the decision and order
herein, either attorney may petition the court
for fixing of this sum. Should petitioner not be
gainfully employed after four weeks from date,
she may petition the court for the continuance of
this order of support on a public charge basis.
Finally on the
issue of the application of petitioner's attorney
for counsel fees, this court directs that
petitioner's attorney submit an affidavit of
services within one week after receipt of this
decision and order, with affidavit of service
upon respondent's attorney, who shall then have
one week to reply thereto. The court notes that
despite the denial of support to petitioner on a
means basis, her attorney labored hard and well
herein with superior legal capacity against an
attorney of similar superior legal capacity and
effectiveness. He should be paid for his efforts.
(See <=4> Brownstein v. Brownstein, supra
and this court's own decision in <=5>
Matter of Harvey v. Harvey, 62 Misc 2d 246.)
Notify attorneys
for parties.
LEVEL 1 - 6 OF 6
CASES
John C. Glover,
Plaintiff, v. Sarah Glover, Defendant
[NO NUMBER IN
ORIGINAL]
Supreme Court of
New York, Westchester County
183 Misc. 549;
51 N.Y.S.2d 662
November 1, 1944
PRIOR HISTORY:
Action for absolute divorce.
DISPOSITION:
Present findings and judgment.
HEADNOTES:
Husband and wife -- divorce -- (1) no statute
requires that plaintiff appear at trial of
matrimonial action -- (2) plaintiff's appearance
at trial or presentation of his deposition not
required where he is in armed forces and cannot
be present at trial or reached for purpose of
executing deposition.
SYLLABUS: 1.
Although it is an established procedure, there is
no statutory requirement that plaintiff appear at
the trial of a matrimonial action.
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