Opinion
June 6, 1967
Judgment modified, on the law and the facts, to the extent of (1) deleting the first decretal paragraph in its entirety and in lieu thereof directing plaintiff to pay to defendant for her support for the period commencing on January 28, 1966, the sum of $96,000 annually, payable in 12 equal monthly installments on the first Monday of each month, at the residence of defendant or at such other place as she may designate in writing, the support accrued from January 28, 1966 to May 1, 1967 to be paid by plaintiff within fifteen days after the date of service of a copy of the order entered hereon with notice of entry, and (2) reducing the figure of $360,000 in the second decretal paragraph to $282,200, and directing that the latter sum be paid within 30 days after the date of service of a copy of the order entered hereon with notice of entry; and as so modified the judgment is otherwise affirmed, without costs or disbursements to either party. The record supports the trial court's conclusion that defendant was not guilty of misconduct which would constitute grounds for separation or divorce. Nor was consideration de novo of that issue barred by the vendors' actions for necessaries instituted in the Civil Court. The judgment recovered in that court in the Bergdorf Goodman Company action was obtained on grounds unrelated to the issue of misconduct; and in no other action in which that issue may have been involved has it been shown upon the record that a judgment was rendered (see Rudd v. Cornell, 171 N.Y. 114, 128, 129; Bronxville Palmer v. State of New York, 18 N.Y.2d 560, 563). The question of the effect of such a judgment is accordingly not reached. Section 236 Dom. Rel. of the Domestic Relations Law opens with the following provision: "In any action or proceeding brought (1) during the lifetime of both parties to the marriage to annul a marriage or declare the nullity of a void marriage, or (2) for a separation, or (3) for a divorce, the court may direct the husband to provide suitably for the support of the wife as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties." We agree with the trial court's rejection of the argument that this "broad grant of discretionary power" ( McMains v. McMains, 15 N.Y.2d 283, 289; Brownstein v. Brownstein, 25 A.D.2d 205, 208), does not permit alimony where, as here, the husband's annulment complaint has failed. We think, however, that the alimony awarded by the trial court does not adequately reflect the pertinent circumstances, especially the marital standard of living and the extent of plaintiff's income, and that justice requires the increase herein directed. The services rendered by defendant's counsel will in our judgment be fairly compensated by the modification we have made.
Concur — Botein, P.J. and Capozzoli; Rabin, J., dissents in part in a memorandum and McNally and McGivern, JJ., concur and dissent in part in a memorandum by McNally, J.
I dissent from the portion of this court's determination which increases the provision for the support of the wife to $8,000 monthly ($96,000 yearly), before taxes. Trial Term awarded $2,400 monthly, after taxes, which amount is asserted to be the equivalent of $58,650 yearly, before taxes. I would affirm that award. I realize that there is no way of fixing an amount for the support of a wife that could be said to be exactly correct. Arriving at an acceptable figure, particularly in a case of this kind presents great difficulties. However, once an amount has been fixed, it is less difficult to recognize whether it is sufficient in the circumstances. I believe the sum of $2,400 monthly, after taxes, which was fixed by the Trial Term, is quite sufficient to meet the husband's obligations in the circumstances of this case. The award given here was made under section 236 Dom. Rel. of the Domestic Relations Law. The design of the Legislature in enacting section 236 is best stated by Justice EAGER in Brownstein v. Brownstein where he says: "The use of the phrase [`as justice requires'] is clearly indicative of an intent to vest the court with a broad discretion, unfettered by `"matter of law" requirements', so as to enable it to make such directions as are required in the interest of justice. (See Vanderbilt v. Vanderbilt, 1 N.Y.2d 342, 353, supra.)" ( 25 A.D.2d 205, 207-208). I do not think that justice was undermined when Trial Term allowed this defendant a mere $2,400 a month, after taxes. Such allowance puts her among those who are in the highest brackets in the country. There is no requirement that she get all that her husband can afford to give. Nor is there any requirement that the wife be made a partner to the husband's affluence. (See Brownstein v. Brownstein, supra.) The award made by Trial Term amply fulfills the requirements of justice.
I concur in the modification increasing the alimony to $96,000 annually, but would provide that the alimony be retroactive to October 19, 1961. There is no logic, in my opinion, for the deprivation of support for the four-year and two-month period from the date of appellant's abandonment of respondent on October 19, 1961, to January 28, 1966, the date the case was restored to the calendar for the determination of the amount of support. There is ample support in the cases for the award of retroactive support. ( Harris v. Harris, 259 N.Y. 334, 337; McCarthy v. McCarthy, 143 N.Y. 235, 240-241; Forrest v. Forrest, 25 N.Y. 501, 514; Horter v. Horter, 177 App. Div. 827.) One of the reasons that impelled the appellant not to move for interim support and counsel fees was the fact that she awaited final determination of the validity of the Mexican decree of divorce under restraint of the judgment herein dated June 9, 1964. It seems to me to be unjust that she should be penalized for so doing, when one takes into consideration that the husband was utilizing a substantial part of this period in establishing a basis for annulment grounded on the fraudulent vacatur of defendant's prior Mexican divorce. A contract to relieve the husband from liability to support his wife is illegal. (General Obligations Law, § 5-311.) Nevertheless, the majority concludes that defendant wife may, without justification, be deprived of support during the pendency of marital litigation instituted by plaintiff husband. The power to award retroactive support is clear. Its exercise is not a matter of judicial grace; it is a matter of judicial discretion. ( Forrest v. Forrest, supra, p. 520.) A careful examination of this record, in my opinion, fails to reveal any basis for relieving plaintiff, even partially, of his obligation to support the defendant. The award of counsel fees, as I see it, is inadequate and unreasonable. Plaintiff has paid former counsel the sum of $445,000; this does not include services of present counsel in this protracted, involved and multilateral litigation with defendant. Plaintiff imposed on defendant the necessity of employing counsel of extraordinary professional capacity to resist plaintiff's involved, unremitting and often fraudulent claims. Defense of the action required the retention of legal experts on Mexican law. The judgment herein evaluates the services of the experts at $40,000. Defendant's disbursements have been $42,200. After provision for disbursements and experts, the allowance of $282,200 to defendant's counsel is reduced to $200,000. A total of 6,539 hours have been devoted by defendant's counsel to this litigation. The award, therefore, is at the rate of approximately $30 per hour. There is a point at which one may conclude an award for legal services is not reasonable. We should judicially notice it is unreasonable to assume that legal services of the nature and extent here involved are available at this hourly rate. An hourly rate of less than $75 for such legal services is, in my opinion, inadequate and unreasonable. In addition, defendant should be awarded the disbursements and the fees for the legal experts. Settle order on notice.