78 Misc. 2d 585 | N.Y.C. Fam. Ct. | 1973
A prior, hearing of this matter before me resulted in a written decision and order based thereon dated May 11,1971, from which respondent appealed to the Appellate
(1) The direction that respondent keep in effect Blue Cross and Blue Shield insurance coverage (or the equivalent) for the benefit of the petitioner and the children and pay their medical and dental expenses.
(2) The direction that respondent pay mortgage payments, real estate taxes, water charges and insurance on the premises of the parties at No. 24 Buckingham Street, Rochester, New York, and on the summer home of the parties at Canandaigua Lake.
(3) With regard to the education of the children, the direction that respondent pay the expenses thereof, including the private education of the child, Martha Hahn, with the added provision that, as to all private schools proposed other than that presently attended by Martha, respondent may, if he deems the school inappropriate to his then financial condition, apply to Family Court to be relieved of this obligation, and, upon such application, he may be so relieved if the court finds that respondent has demonstrated such inappropriateness' and no alternate appropriate school is proposed.
The Appellate Division went on to say that as to all other obligations imposed by my order, it was more desirable to make an inclusive award of a specified sum rather than impose liability for an unfixed amount that might be subject to manipulation by petitioner; and since the record was inadequate to arrive at such a figure, remitted the proceeding back to this court for the receipt of proof on which such amount could be determined, including evidence of respondent’s income and ability to pay for the support and maintenance of his wife and children.
Further hearings were held before me at which proofs and testimony were taken, at the close of which I reserved decision in order to give both counsel, at their request, an opportunity to submit memoranda of law which was subsequently done.
A comment is necessary with regard to the education of the children. Sums for the education of the children are separate and to be paid by the respondent separately. Section 416 of the Family Court Act states that the court may include in the requirements for an order of support the providing of the
There is no question but that respondent is chargeable with and responsible for the support of petitioner (his wife) and their four minor dependent children, and a finding to this effect has already been made in my previous order. Respondent’s duty and liability to support petitioner, his wife, and their four minor dependent children are spelled out in section 412 of the Family Court Act which provides that a husband is
There is authority in the law so as to permit the court to direct respondent to provide and pay for maintenance and repairs both to the Buckingham Street premises (occupied by petitioner and the four children) and the summer home at Canandaigua Lake. These items fall properly, reasonably and logically within the language ‘ ‘ shelter ’ ’ and £ ‘ other proper and reasonable expenses ” in .section 416 of the Family Court Act as construed with section 236 of the Domestic Relations Law (see Matter of Smith v. Smith, 53 Misc 2d 712).
Respondent no longer lives in Rochester but has moved to Florida, where he has formed a new corporation, Paine Asso
Coleman dividends .............. $24,000.00
Paine Co........................ 14,000.00
Clinton Merchandising........... 15,000.00
6% on $175,000.00 ............... 10,500.00
$63,500.00
To this should be added the profit he should be receiving from his Florida corporation which is operating on a 10% gross profit margin. Also of interest is P-Ex-2 (respondent’s financial statement given to Lincoln Rochester Trust Company) in which he shows, among his assets, cash on hand of $20,000, readily marketable securities worth $2,100,000 (now possibly $1,600,000), and a net worth of $2,252,898.
Respondent’s actual living expenses do not appear to be substantial. His Florida corporation owns the building in which he has living quarters, thus permitting him to live rent free. Apparently, his travel expenses to and from Florida] and Rochester, as well as the expenses of operating his automobile in Florida, are handled as business expenses and not paid by respondent personally. He testified that his expenses for food are about $30 per week; clothing $500-$600 per year; a cleaning lady $20 every two weeks; laundry and dry cleaning, under $5 per week; hair, cuts twice a year; vacations and trips, $700-$800 per year; personal entertainment, $10-$15 per week; drugs, sundries, newspapers, magazines, books, $5-$10 per week. These are the only expenses respondent testified to so that his expenses for his own persona,! needs average out to something less than $100 per week. I
It should also be noted that in recent months respondent spent $5,000 on a campaign for election to public office in Florida, provided his daughter, Martha, with a 1972 Volkswagen and bought a $1,300 boat (Boston Whaler) for the children. All of this can only reflect favorably upon his ability to pay support.
Petitioner and the four children still live in a large, three-story, 50-year-old house at No. 24 Buckingham Street in the
Buckingham Street ($1,085.00 — yearly recurring maintenance expenses such as snow plowing, grass cutting, cleaning lady, electrical and plumbing repairs, changing screens and storm windows, etc.).........$ 21.00 per wk
* Summer Cottage ($432.00 — yearly recurring maintenance expenses such as grass cutting, service calls, garbage collection, turning water on and off, putting in and taking out dock, etc.) .................... 8.50 per wk
Vacations ($4,860.00 — yearly, including food, travel and lodging)...................... 93.00 per wk
Entertainment ........................... 53.00 per wk
Newspapers, books and magazines.......... 2.75 per wk
G-asoline, oil and repairs to automobile....... 15.50 per wk
Automobile insurance ...................... 5.75 per wk
Drugs ................................... 14.00 per wk
Food .................................... 150.00 per wk
Clothing, yearly:
Petitioner ..........$ 4,812.00
Philip .............. 1,870.70
Martha ............. 3,337.50
Elizabeth & Cathy ... 2,579.19
$12,599.39 243.00 per wk
Contributions ............................ 1.50 per wk
Haircuts, hair-do’s ....................... 7.50 per wk
Total $615.50 per wk
*Respondent is separately obligated, in the view of the Appellate Division, to pay for mortgage payments, real estate taxes, water charges and insurance on both premises; hence these items are not included in petitioner’s budget.
It is the position of respondent that several items in petitioner’s budget are inflated and overexaggerated and not properly substantiated, particularly the vacation, entertainment, food and clothing items. On the whole, I feel that petitioner did substantiate the various items in her budget. If any one could have rebutted her figures, respondent was in the best position to do so but he did not testify to this effect. Any reduction in the food item by reason of Martha’s being out of the home at college is probably offset by the rising prices of food. Many of the activities listed under entertainment are not being as regularly pursued as before the separation since petitioner simply has not had adequate funds to do so; the same applies to vacations. It is true that the clothing items seem high in the light of my previous finding that for the period of 1966-1969 the yearly average expenditure for clothing was $3,900; again, however, it must be remembered that each of the four children is older and more expensive to clothe and that the price of clothing has also risen. It was the testimony of respondent’s home economist expert, Mary McCartney, that a gross income of $17,500 per year, before all taxes, in the Rochester area was sufficient to maintain a high standard of living for a family of five persons, such as petitioner and the four children. From this amount expenses for housing, taxes, food, clothing, shelter, etc. are to be paid. It was pointed out that petitioner is presently receiving $16,900 per year ($325 per week) with no expenses for taxes, housing, medical expenses, etc. The testimony of Miss McCartney is not entirely reliable because (1) her figures are averages and do not relate to the preseparation standard of living enjoyed by petitioner and the children; (2) her figures do not reflect both a home and summer cottage, as here; (3) her figures are limited to an “above average family” and not to the Hahn family; and (4) her high standard of living related to an income of $17,500 per year and she was unable to give any opinion in the case where a father’s income might be twice or three times as much as $17,500. Some consideration must also be given to the fact that
At this point it might be appropriate to review the evidence with reference to the maintenance and repairs to No. 24 Buckingham Street and the Canandiagua Lake summer cottage:
CANANDAIGUA LAKE SUMMER COTTAGE
Frankly, there was no expert testimony as to the maintenance and repair of the cottage. However, from an examination of P-Ex-13 and P-Ex-14 and from petitioner’s testimony, it can reasonably be concluded that the following things need to be done:
(1) New roof (present roof leaks) —no estimate
(2) Paint outside (estimate — $1200)
(3) Breakwall and entire foundation of cottage and porch should be inspected and checked for cracks and settling and necessary repairs made as indicated by such inspection.
Appliances:
(1) Power mower replaced (estimate — $100)
(2) Hot water heater replaced (must run on electricity and not gas — no estimate)
Respondent presented no proof or testimony to rebut or refute the foregoing.
NO. 24 BUCKINGHAM STREET
It is uncontroverted from the testimony and exhibits that the Buckingham Street premises and its furnishings are in need of renovation and repair.
(1) Painting and decorating:
Petitioner’s expert witness, Robert Jordan of W.W. Jordan & Sons, Pittsford, New York,
Respondent’s expert witness, Joseph J. Scofero of Joseph J. iScofero & Son, Webster, New York, testified to a figure of $5,272.10 plus $800 for wallpaper for a total of $6,072.10 (see R-Ex-D). I was more favorably impressed by Mr. Scofero insofar as the reliability and accuracy of his figures were concerned since Mr. Jordan could not give the basis on which his figures were arrived at. Since he is respondent’s witness, respondent should be bound by his figures.
(2) Furniture :
Petitioner’s expert witness, Lois C. Maier, testified to a figure of $2,492.80 ($1,392.80 materials and $1,100 labor) plus 7% sales tax plus something more which she could not estimate by way of a price increase since she had made her estimate.
Respondent’s expert witness, Anthony J. Castronova of Nova Finishing Company, Rochester, New York, testified to a figure of $2,619 (see Rr-Ex-C) and further testified that he would do the complete job for $3,000, absorbing therein sales tax and any anticipated increase in labor and materials.
Since the respective estimates are relatively close and since Mr. Castronova’s figure is more definite and certain, it would seem reasonable that the work should ,be done by him particularly since he, too, is respondent’s witness and respondent should be bound by his figures.
(3) Carpeting:
Petitioner’s expert witness, Lois C. Maier, testified to the following figures:
Living room: .............$1,756.07
221.48 pad 171.44 install
$2,148.99
$ 238.80
47.76 pad
54.00 install
$ 340.56
Stairs, hall and front entry: $1,706.50
168.09 pad
130.11 install
7.50 strip
$2,012.20
Bedrooms: #1 ............$ 507.29
#2 ............ 443.70
#3 ............ 384.54
#4 ............ 295.80
$1,631.33 materials only
Total $6,133.08 (plus sales tax and labor for bedrooms.)
(Although this puts carpeting where there was none before, it was testified that it is a matter of refinishing the floors or putting down carpeting and it is cheaper to put down the carpeting.)
(4) Draperies:
Petitioner’s expert witness, Lois C. Maier, testified to the following figures:
Living Room 488.22 overdrap.es 429.05 underdrapes $
Stairway 236.79
Library 263.97
Dining Boom 207.47
Shades in Dining
Room doors 379.05
Master Bathroom . 103.20
Master Bedroom . 304.79
Child’s Boom 100.30
Powder Boom____ 130.20
Bedroom #1..... 228.75
Bedroom #3 ........ 231.83
Total $3,434.11 (materials only; no labor; pins sales tax).
(Respondent waived Ms right to present proof on the matter of the draperies and, other than cross-examination, presented no other proof on the matter of the carpeting. Respondent, therefore, is bound by these figures.)
• Appliances:
(1) Automobile: Respondent has been supplying both petitioner and Martha with an automobile. Said automobiles have been kept either in respondent’s name or the business name and the expenses of operating said automobiles have apparently been taken as business expenses. Petitioner testified that she is presently driving a 1970 Ford station wagon to replace which would cost $4,800.
(2) Disposal: blade broken: cost $90 to replace.
(3) Dishwasher leaking: $13 service charge.
(4) Television sets: three sets in house, none work.
Motorola — not repairable.
14" portable — 4-5 years old.
21" portable — cost at least $200 to replace.
(Petitioner gave the foregoing testimony as to these appliances none of which was rebutted or refuted by respondent.)
After carefully considering and weighing the needs and requirements of the petitioner and the four minor dependent children and the financial means and abilities (including his potential abilities to earn means as well as his actual means and also including the accustomed standard of living which is within his means and abilities to sustain) of respondent, as well as the effect that my decision may have on his financial circumstances and the respective circumstances of the parties, I am finding and deciding as follows:
(1) That petitioner and the four children continue to live in and occupy the premises at No. 24 Buckingham Street, Rochester, New York.
(3) That respondent, effective February 1, 1974, pay directly to petitioner as and for the support of herself and the four minor dependent children the sum of $500 per week, allocated $100 per week for the support of the petitioner and $400 per week for the support of the children, at the rate of $100 per week per child, and that, in addition thereto:
(a) Respondent pay mortgage payments, real estate taxes, water charges and insurance on the premises of the parties at No. 24 Buckingham Street, Rochester, New York, and on the summer home on Canandaigua Lake.
(b) Respondent keep in effect Blue Cross/Blue Shield coverage (or the equivalent) for the benefit of petitioner and the children and pay their medical and dental expenses.
(c) Respondent provide for the college education of the child, Martha, and for the private school education of the other three children, Elizabeth, Catherine and Philip, Jr., provided that as to the college or private school proposed, respondent may, if he deems the college or school inappropriate to his then financial condition, apply to Family Court to be relieved from this obligation and upon such application may be so relieved if Family Court finds that he has demonstrated such inappropriateness and no alternate school is proposed.
(d) Upon compliance with the foregoing directions and in accordance with existing income tax] rules and regulations respondent is to be permitted to claim the four children as dependency exemptions; and if he itemized his deductions, he is to be permitted to deduct as alimony payments the aforesaid $100 per week paid to the petitioner who, in turn, is to include them in her income for income tax purposes; and if he itemizes his deductions, respondent is to be permitted to deduct medical and dental expenses actually paid by him for the benefit of petitioner and the four children, as well as any real estate taxes and mortgage interest actually paid by him on the Buckingham Street and Canandaigua Lake properties.
(4) That within 30 days from February 1, 1974, respondent is to make definite arrangements (and advise the petitioner, in writing with regard thereto) in connection with the Canandaigua Lake summer cottage to have the roof on the cottage and garage replaced, to have the outside painted and to have the breakwall and entire foundation of cottage and porch inspected and
(5) That within 30 days from February 1, 1974, respondent is to make definite arrangements (and advise the petitioner in writing with regard thereto) in connection with the Buckingham Street premises to have the same painted and decorated as set forth in R-Ex-D by Joseph J. Scofero of Joseph G. Scofero & Son, Webster, New York, at a cost to be paid by respondent of $6,072.10, to have the furniture repaired as set forth in R-Ex-C by Anthony J. Castronova of Nova Finishing Company, Rochester, New York, at a cost to be paid by respondent of $3,000, to have carpeting installed through Lois C. Maier as previously set forth in this decision at a cost to be paid by respondent of $6,133.08 plus ,sales tax and labor, and to have draperies installed through Lois C. Maier as previously set forth in this decision at a cost to be paid by respondent of $3,434.11 plus labor and sales tax, all work to be undertaken and completed as soon as labor and materials are available. And, furthermore, within 30 days from February 1, 1974, respondent, at his own cost and expense, arrange to replace the disposal, take care of the leak in the dishwasher and provide at least two television sets to replace the 14-inch and 21-inch portables.
(6) Respondent continue to provide an automobile for the transportation and use of the petitioner and the four children (at least such as would qualify for an inspection sticker under the laws of the State of New York).
• There remains to be considered the application of counsel for petitioner for an award of counsel fees in connection with which he has submitted an affidavit in support thereof. What criteria should the court follow in the fixation and determination of counsel fees? Generally speaking, they are (1) the discretion of the court, (2) the circumstances of the case, and (3) the requirements of justice. More specifically, the courts have held that, the relevant factors are the nature and extent of the services, the actual time spent, the necessity therefor, the nature of the issues involved, the professional standing of counsel and the results achieved (see Matter of Burk, 6 A D 2d 429; Matter
Counsel fees and disbursements so awarded are to be paid directly by respondent to petitioner’s counsel within 60 days from February 1, 1974, or at such other times or on such other terms as counsel for petitioner and respondent might otherwise mutually agree upon between themselves.
None of the obligations of the respondent by way of support or counsel fees shall become effective, however, without there first being served upon respondent’s counsel a copy of an order to be submitted in accordance with this decision with notice of entry thereof at least 10 days in advance of the date when payment of such obligations become effective as provided herein.