Cognetto v. Cognetto , 400 N.Y.S.2d 653 ( 1977 )

Judgment unanimously modified, in accordance with memorandum and, as modified, affirmed, without costs. Memorandum: This appeal involves the amount of alimony awarded to the respondent wife, who obtained a judgment of divorce on the grounds of cruel and inhuman treatment. The husband contends that the court’s award of alimony was excessive. The husband’s adjusted gross income as shown on income tax returns was $14,475 in 1975 and $13,685 in 1974. By adding dividends which had been excluded, an IRA contribution, and depreciation taken on buildings used in his business and jointly owned by his wife, his actual income for those years was $18,947 in 1975 and $17,019 in 1974. The wife requires approximately $1,200 per month in addition to use and maintenance of the marital residence. The husband has been ordered to pay taxes, insurance and repairs thereon. The wife is now a registered nurse but the court apparently discounted the fact that she is capable of supporting herself. The award of $175 per week with the direction that it "shall continue though the plaintiff becomes gainfully employed on a part-time basis” discourages her from becoming self-supporting and gives her a windfall. The court may have been influenced by her testimony that she was unable to work full time because of a medical problem; however, there is no medical evidence in this record to support her claim. Under the standards set forth in section 236 of the Domestic Relations Law and Kover v Kover (29 NY2d 408), we find that the amount of alimony which the wife requires in addition to maintenance of the marital residence and the amount that she is capable of earning as a registered nurse ($160 a week) is $100 per week. The award is therefore reduced accordingly. (Appeal from judgment of Oneida Supreme Court— divorce.) Present—Cardamone, J. P., Hancock, Jr., Denman and Witmer, JJ.