Horn v. Horn

Appellate Division of the Supreme Court of New York

Horn v. Horn

71 A.D.2d 834, 419 N.Y.S.2d 371, 1979 N.Y. App. Div. LEXIS 13061

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 13, 1979

StatusPublished

This text of 71 A.D.2d 834 (Horn v. Horn) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Horn v. Horn, 71 A.D.2d 834, 419 N.Y.S.2d 371, 1979 N.Y. App. Div. LEXIS 13061 (N.Y. Ct. App. 1979).

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Opinion

Judgment unanimously modified and, as modified, affirmed, with costs to respondent, and matter remitted to Supreme Court, Onondaga County, for further proceedings in accordance with the following memorandum: Appellant husband seeks review of a judgment dismissing his complaint for divorce on the ground of the alleged adultery of respondent, his wife; granting respondent’s counterclaim for divorce on the ground of cruel and inhuman treatment; awarding respondent exclusive possession of the marital residence; directing appellant to pay $175 per week support and alimony as well as certain expenses; and granting custody of the four children of the parties to respondent. The record supports the denial of divorce in favor of appellant and the grant of divorce to respondent. The award of custody of the children to respondent was proper, as was the award to her of exclusive possession of the marital residence. The record contains insufficient evidence to support the financial provisions of the judgment including the award of $175 per week for alimony and support and the direction that appellant pay the mortgage installments, real estate taxes, costs of repairs to the house, and medical, dental, and hospital expenses of respondent and the children. Appellant’s financial affidavit was not submitted and his State and Federal tax forms were not introduced into evidence. Nor is there any testimony pertaining to his take-home pay and expenses. Without some evidence on these subjects neither the trial court nor this court can arrive at "a nice but realistic balancing of the wife’s needs and her independent means for meeting them with the husband’s abilities to pay” (Phillips v Phillips, 1 AD2d 393, 396, affd 2 NY2d 742). We remit the case to Trial Term for reconsideration of the award of alimony, support, and other payments in [835]*835light of all relevant evidence including appellant’s take-home pay, his living expenses and respondent’s ability to work. (Appeal from judgment of Onondaga Supreme Court—divorce.) Present—Simons, J. P., Hancock, Jr., Callahan, Doerr and Moule, JJ.

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Judgment unanimously modified and, as modified, affirmed, with costs to respondent, and matter remitted to Supreme Court, Onondaga County, for further proceedings in accordance with the following memorandum: Appellant husband seeks review of a judgment dismissing his complaint for divorce on the ground of the alleged adultery of respondent, his wife; granting respondent’s counterclaim for divorce on the ground of cruel and inhuman treatment; awarding respondent exclusive possession of the marital residence; directing appellant to pay $175 per week support and alimony as well as certain expenses; and granting custody of the four children of the parties to respondent. The record supports the denial of divorce in favor of appellant and the grant of divorce to respondent. The award of custody of the children to respondent was proper, as was the award to her of exclusive possession of the marital residence. The record contains insufficient evidence to support the financial provisions of the judgment including the award of $175 per week for alimony and support and the direction that appellant pay the mortgage installments, real estate taxes, costs of repairs to the house, and medical, dental, and hospital expenses of respondent and the children. Appellant’s financial affidavit was not submitted and his State and Federal tax forms were not introduced into evidence. Nor is there any testimony pertaining to his take-home pay and expenses. Without some evidence on these subjects neither the trial court nor this court can arrive at "a nice but realistic balancing of the wife’s needs and her independent means for meeting them with the husband’s abilities to pay” (Phillips v Phillips, 1 AD2d 393, 396, affd 2 NY2d 742). We remit the case to Trial Term for reconsideration of the award of alimony, support, and other payments in [835]*835light of all relevant evidence including appellant’s take-home pay, his living expenses and respondent’s ability to work. (Appeal from judgment of Onondaga Supreme Court—divorce.) Present—Simons, J. P., Hancock, Jr., Callahan, Doerr and Moule, JJ.

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Bluebook (online)

71 A.D.2d 834, 419 N.Y.S.2d 371, 1979 N.Y. App. Div. LEXIS 13061, Counsel Stack Legal Research, https://law.counselstack.com/opinion/horn-v-horn-nyappdiv-1979.

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