Opinion
March 29, 1971
In in action for divorce, defendant appeals from a judgment of the Supreme Court, Nassau County, dated December 2, 1970, which granted plaintiff a divorce on the ground of cruel and inhuman treatment and awarded her alimony, support for the parties' children, counsel fees and other relief. Judgment modified, on the law and the facts, by striking therefrom all the decretal provisions except the first two decretal paragraphs, which granted plaintiff a divorce and custody of the parties' children, with visitation rights to defendant, and case remitted to the trial court, in the interests of justice, for a hearing and new determination on the issues of alimony, support for the children and counsel fees, and for entry of an amended judgment after rendition of such new determination. As so modified, judgment affirmed, without costs. While courts have broad discretion to make such directions for support and maintenance, etc., as "justice requires", they must always keep in mind "the circumstances of the case and of the respective parties" (see Domestic Relations Law, §§ 236, 237, 240). This, in turn, requires the courts "to consider not only the standard of living the parties enjoyed jointly during marriage, but the financial resources of each, considered separately * * *. There must be a nice but realistic balancing of the wife's needs and her independent means for meeting them with the husband's abilities to pay" ( Phillips v. Phillips, 1 A.D.2d 393, 396, affd. 2 N.Y.2d 742). At bar, in our opinion, the proof was insufficient upon which to base findings as to the needs of plaintiff and the children or as to defendant's salary and holdings (see Tedrow v. Tedrow, 35 A.D.2d 768). Plaintiff, at best, spoke in terms of approximations. She was unable to be specific about most items. This was understandable: the parties continued to live together in their marital residence during the proceedings, with defendant, as was his wont, paying all the expenses of maintaining the premises as well as his weekly payment to plaintiff of a $190 "allowance". Defendant did not testify at the trial, but affidavits submitted by him indicated his income was considerably less than the amount which the trial court apparently used as the basis for its awards with respect to alimony, child support and counsel fees; and also that defendant's living standard was based on capital expenditures. This is not a proper basis for permanent alimony (see Orenstein v. Orenstein, 26 A.D.2d 928). Rabin, P.J., Hopkins, Munder, Martuscello and Latham, JJ., concur. [ 64 Misc.2d 352.]