Johnson v. Johnson

91 A.D.2d 951, 458 N.Y.S.2d 568, 1983 N.Y. App. Div. LEXIS 16238

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 25, 1983
• Status: Published

Opinions

— Order, Supreme Court, New York County (Gabel, J.), entered June 11, 1982, granting plaintiff wife’s motion for pendente lite relief in this divorce action to the extent of, inter alia, directing defendant husband to: pay $300 per week to plaintiff for her maintenance; pay $400 per week in child support for the parties’ daughter; maintain and pay the expenses for the marital residence; pay the private school expenses for the daughter; and, to maintain in full force and effect the family health insurance, is affirmed, without costs. The parties have been married eight years. A seven-year-old daughter is the only issue. Plaintiff has custody of the daughter and the defendant has liberal visitation privileges. While married, the parties enjoyed a very luxurious life-style. The defendant’s yearly income, as a high-level corporate executive, varied between , $100,000 and $241,500. During some of these years, plaintiff augmented this income by earning approximately $35,000 a year as an advertising executive. Annually, each party realizes the income of approximately $25,000 tax free from their individual portfolios of municipal bonds. Defendant has $20,000 cash in a bank account. Both parties are currently unemployed. Plaintiff alleges that she cannot work because of a colitis condition. Since resigning in January, 1981 as executive vice-president of a major corporation, the defendant has been seeking a position as a corporate chief executive officer. Upon defendant’s resignation, he received $100,000 as severance pay, before taxes, and the last installment was received in June, 1982. Part B of section 236 of the Domestic Relations Law sets forth the factors to be considered in the awarding of pendente lite relief. In pertinent part, paragraph a of subdivision 6 of this section states: “the court may order temporary maintenance or maintenance to meet the reasonable needs of a party to the matrimonial action in such amount as justice requires, having regard for the circumstances of the case and of the respective parties.” Insofar as both parties have been unemployed since July 1, 1982, an appropriate test would be to hold the parties to the income they are “capable of earning by honest efforts”. (Kay v Kay, 37 NY2d 632, 637.) We find on the fact pattern contained in this record that Special Term struck a proper and equitable balance. Concur — Ross, J. P., Asch and Fein, JJ.