Walsh v. Walsh

144 A.D.2d 947, 534 N.Y.S.2d 260, 1988 N.Y. App. Div. LEXIS 14421

Opinion

— Order unanimously modified on the law to grant the petition in accordance with memorandum herein and as modified affirmed with costs to petitioner. Memorandum: In these appeals from orders of Family Court denying petitioners’ applications for spousal support, we reverse and grant support to petitioners in each case in the amount which was either awarded by the Hearing Examiner or established as necessary by petitioners’ proof, taking into account petitioners’ assets. The income of a resident in a nursing home is available to support his or her spouse even though the person from whom support is sought is a Medicaid recipient (see, Matter of Nester v Nester, 135 AD2d 878, 879; Matter of Morrison v Morrison, 132 AD2d 985; Matter of Albany County Dept, of Social Servs. v Englehardt, 124 AD2d 140, 142, lv denied 69 NY2d 612; Matter of Septuagenarian v Septuagenarian, 126 Misc 2d 699). Petitioners’ requests for attorneys’ fees were properly denied in each case either because the petition contained no request for such relief, because there was no proof of the value of such services, or because the court properly exercised its discretion to deny such relief based on the applicant’s ability to pay her own attorney’s fees. (Appeal from order of Onondaga County Family Court, McLaughlin, J. — spousal support.) Present — Dillon, P. J., Denman, Green, Lawton and Davis, JJ. [See, 136 Misc 2d 564.]