131 Misc. 388 | N.Y. Sup. Ct. | 1928
The defendant objects to the confirmation of the referee’s report awarding the plaintiff $900 additional alimony per annum for the support of herself and her child, now nine years old. The present alimony was fixed on April 3, 1924, by the decree of separation, granted to plaintiff by reason of defendant’s abandonment. This proceeding was brought under section 1170 of the Civil Practice Act, the order of reference specifying an inquiry into the “ financial means of the defendant and the increased needs,' if any, of the plaintiff and her infant daughter.” At the time of the decree, defendant was the owner of securities which he had inherited from his father, amounting to approximately $242,000. This fund, by reason of inroads upon the capital, has been reduced to something less than $225,000! In addition, he draws an income for life left to him by his aunt, amounting to $1,200 per annum, the trust fund from which the income is obtained being $33 000. It appears beyond question that defendant’s financial means have not improved since the decree, and the sole matter to be considered is whether, in view of these circumstances, the referee was warranted in awarding the sum additional.
Defendant urges that alimony which already absorbs half of his income should not be increased. The contention may sound reasonable in the abstract, but when applied to the particular facts in this case, it wholly fails. He is possessed of large capital in comparatively liquid form, but he endeavors to secure a limit of the alimony allowance to but a moiety of the income derived. He does not engage in any gainful occupation although his position and his connections would clearly indicate that potentially he may earn a fair income by his efforts. Beyond interesting himself in a few unfortunate and improvident ventures, he appears to have done nothing. His ability from the viewpoint of his personal earnings, is certainly an element to be considered in determining the measure of alimony that he shall be required to pay. As Bishop expressed it in his work on Marriage, Divorce and Separation (Vol. 2 [1891], § 890): “ The husband’s faculties are his capabilities of maintaining a family, ordinarily consisting of his income from whatever source derived. But if he refuses to acquire income, the sum which he might obtain by due exertion is also to be estimated as faculties.” (Italics mine.) And this learned writer thus further indicates that earning capacity, even in the absence of actual employment, is an essential element: “ Plainly the husband’s ability is the measure of his duty; so that if he exerts himself, his actual earnings become faculties for alimony, or if he mil not exert himself, his capacity for earning must be estimated.” (Id. § 892.) (Italics mine.)
Applying these principles to the case under consideration, it
Considering all the circumstances, I am not at all persuaded by the objections of the defendant, nor are they well founded.
The motion to confirm the report of the referee will, therefore, be granted.
Settle order.