Jan S. v. Leonard S.

26 Misc. 3d 243
CourtNew York Supreme Court
DecidedAugust 28, 2009
StatusPublished
Cited by2 cases

This text of 26 Misc. 3d 243 (Jan S. v. Leonard S.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jan S. v. Leonard S., 26 Misc. 3d 243 (N.Y. Super. Ct. 2009).

Opinion

OPINION OF THE COURT

Matthew F. Cooper, J.

The sad and unusual facts in this case seem in some ways to spring more from the pages of a Victorian novel like Jane Eyre than from the annals of modern American divorce. The parties were married in their youth more than 40 years ago. They had [245]*245no children. Since they separated in 1967, after having lived together for only a year, their lives have taken diametrically divergent paths. The defendant ex-husband has gone on to remarry, have a family, and make a substantial fortune as a financier and business owner. The plaintiff ex-wife has descended into mental illness, poverty and eventual homelessness. But because their 1974 divorce decree requires the ex-husband to pay lifetime alimony, the parties remain tied to one another by a course of postjudgment litigation.

The ex-husband has made a motion to confirm the report of the Special Referee recommending that the ex-wife’s latest attempt to increase the $100 a week she receives as alimony be denied. The ex-wife, in turn, has made a cross motion to reject the Referee’s report. The ex-wife further seeks to have the court grant the relief sought in the underlying order to show cause, which had been referred to the Referee to hear and report. She asks the court to find that there has been a substantial change in circumstances that requires the award be dramatically increased in order to allow her to cease being dependent on public assistance benefits, to buy or rent an apartment so that she is no longer homeless, and to cover the cost of extensive medical and dental services she states she needs.

In deciding the motion and cross motion, there are a number of more technical issues to consider. These include the requirements of Domestic Relations Law § 236 (A) (l),1 the ramifications of the ex-wife being a “public charge,” the effect of decisions made on prior applications brought by the ex-wife, and the standard to be used in either confirming or rejecting the Referee’s report. There remains, however, one fundamental issue that goes to the heart of the matter. That issue is whether the ex-husband is responsible for the needs of the ex-wife— irrespective of how great his financial resources are or how dire her needs may be — simply because they were married to each other for a short period of time in the long-distant past.

I. Statement of Facts and Procedural History

The parties were married on August 13, 1966, in Acapulco, Mexico during a three-day layover en route to Australia. They were headed to Australia so that the ex-husband could study at [246]*246the University of Melbourne on a Fulbright scholarship. Because they learned that it would be easier for the ex-wife to obtain a visa if they were married, the parties, unaccompanied by friends or family, went before a Mexican Civil Registrar to marry them. Both the premarriage formalities and the wedding ceremony were conducted in a matter of minutes and in Spanish, a language neither party spoke.

Once the parties were in Australia, they lived together, with the ex-husband studying and teaching and the ex-wife working on and off as a secretary. Upon their return to the United States in September 1967, the parties immediately separated. The ex-wife went to Maryland and the ex-husband went to New York City. The parties entered into an agreement in 1969 distributing whatever marital property they had. No children resulted from the brief union.

The ex-wife commenced a divorce action in 1971, the same year she moved to New York. The case finally came to trial in January 1974, after which the ex-wife was granted a judgment of divorce and the ex-husband ordered to pay $100 per week in lifetime alimony. In his decision dated February 20, 1974, the trial judge made findings that the ex-wife had not been employed since arriving in New York, had made no efforts to gain employment, and had been receiving “welfare support payments from the New York City Department of Welfare since November 1971.”

The ex-wife’s circumstances never improved. In November 1974, she began receiving Supplemental Security Income (SSI), a federally funded public assistance program, based on a determination by the Social Security Administration that she suffered from a mental disability. The ex-wife did not return to the workforce and she has been continuously dependent on government benefits, along with her small amount of alimony and, as of very recently, some educational grant money, to support her for the last 35 years.

Over the past 35 years, the ex-wife has made at least four prior applications for an upward modification of the alimony award. The applications were based on developments that the ex-wife argued constituted a change in circumstances. These included the loss of her apartment and subsequent homelessness, her dependency on public benefits placing her “in danger of becoming a public charge,” the increased rate of inflation, and the diminished purchasing power of the $100 in weekly alimony.

[247]*247All the ex-wife’s prior applications were denied to the extent that the $100 per week alimony was not increased. In 1994, however, the late Justice Lewis R Friedman, on the third application to modify the award, ordered the ex-husband to pay the ex-wife’s outstanding dental bills. Justice Friedman, as an accommodation to the ex-wife’s particular needs, also directed the ex-husband to cease paying the alimony on a weekly basis in favor of paying semi-annually and prospectively in two $2,600 lump sum payments. Since that time, the ex-husband has continued to make the $2,600 lump sum payments on January 1 and July 1 of each year.

In a decision on the fourth application for an upward modification, Justice Friedman, while agreeing with the Special Referee that the ex-wife’s eviction from her Gramercy Park apartment in May of 1995 amounted to a substantial change in circumstances, declined to follow the Referee’s recommendation for an upward modification of the award. Justice Friedman wrote, “the plaintiff [ex-wife] put herself on the public dole in 1971, years prior to the divorce” and that she “is not now ‘in danger of becoming a public charge.’ ” In the decision, dated June 18, 1996, he went on to observe that “Ex Husband is not the guardian of the Ex Wife and should not be made to act as such.”

In the June 18, 1996 decision, Justice Friedman further ruled that the ex-wife was not entitled to share in the ex-husband’s increased income and he rejected her argument that inflation and the rising cost of living had so eroded the original alimony award as to constitute an unforeseen and substantial change in circumstances. With regard to the issue of inflation, he found that it was not something that could be used to support a claim for upward modification. Although the court again denied the ex-wife any increase in her $100 weekly alimony payments, the ex-husband was ordered to make a one-time payment to enable the ex-wife to remove her possessions from storage upon her obtaining an apartment. Because the ex-wife never obtained an apartment, the ex-husband did not have to make the payment.

On May 8, 2007, the ex-wife moved by order to show cause for the upward modification at issue herein. In addition to seeking an increase of the regularly recurring alimony award to an amount sufficient “so that the plaintiff would no longer be a public charge,” the ex-wife demands that the ex-husband be made to pay for medical and dental work, including periodontal [248]

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Cite This Page — Counsel Stack

Bluebook (online)
26 Misc. 3d 243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jan-s-v-leonard-s-nysupct-2009.