Blair v. Blair

Morton N. Winkler for petitioner. Albert C. Gilbert for respondent. In the case of Sternheim v. Sternheim (174 Misc. 574) this court said: "To permit a spouse to leave her husband and to allow the obligation for her support to continue, despite her leaving him, the court must find as a matter of fact that it is impossible or unsafe for the spouse to continue to live with her husband." An isolated disagreement is not sufficient on which a finding of a constructive abandonment can be predicated. The disagreements here were continuous. While there is no testimony of vocal disagreements, the conduct between the parties undoubtedly establishes disagreement of serious nature. In the course of the trial the court expressed itself as follows: "I have already concluded that this lady is not entitled to support on the basis of her likelihood to become a public charge. She earns $170 a month * * *. She has a home which she owns in common with her daughter for which $15,000 was paid. All of that precludes me from making an order in her behalf, on the basis of being a public charge or her likelihood to become a public charge". The question is: Is she entitled to support on the basis of respondent's means, taking into consideration the circumstances of both, and applying the law in the light of justice to both parties? The respondent contributed to her maintenance in the sum of $40 monthly since she moved from their common home in the building which he owns, taking all except his personal furniture. There was no order requiring him to do so. That amounts to an admission by him that he owed her an obligation and met it. The law must be applied rather than an admission unless it is reduced to a stipulation or enforcible agreement between the parties. The petitioner must establish by a preponderance of the evidence her asserted claim, to wit, support from her husband according to his means, though she does not need any help from him. Together with the testimony of the husband she has established the right to support from him. The respondent's refusal to answer the question as to his relationship with "M", while it is not evidence of misconduct, is nevertheless evidentiary. I conclude that the husband is required to contribute the sum of $50 monthly toward the support of petitioner. Until further order of the court, an order to that effect is made. [*] Names used herein are fictitious, for the purposes of publication.