Opinion
February 18, 1971
Appeal from the Monroe Trial Term.
Present — Goldman, P.J., Marsh, Witmer and Henry, JJ.
Order unanimously modified in accordance with the memorandum and as so modified affirmed with costs to respondent. Memorandum: The trial court properly increased the alimony and support payments contained in the decree of separation herein and required the husband to pay for house repairs in accordance with the provisions of the decree. The fifth decretal paragraph of the order, which required the husband to pay to the wife one third of any bonus in excess of $3,000 which he shall receive in addition to his base salary, should be deleted. "The court may direct the husband to provide suitably for the support of the wife as * * * justice requires, having regard to the * * * circumstances of the case and of the respective parties." (Domestic Relations Law, § 236.) The husband in this case received annual bonuses from the employer for the previous five years, but whether a bonus would be paid in the current year was seriously in doubt. Bonus payments received are circumstances which should be considered by the court in fixing the amount of alimony and support payments to be made for the benefit of the wife and children. The allowance of a share of future bonus payments to the wife would, however, permit her to share in his income. "A wife is not entitled to a share of her husband's income as such." ( McMains v. McMains, 15 N.Y.2d 283, 288, 289.) The order should be modified by striking the fifth decretal paragraph thereof.