Patterson v. Patterson , 38 N.Y.S. 637 ( 1896 )

Rumsey, J. :

The action was brought for a separation. After issue was joined the plaintiff moved for alimony and counsel fees, and after a full hearing the court made an order containing the following provisions, from which the appellant has taken this appeal:

“ That if both plaintiff and defendant consent to such reference an allowance of twenty-five dollars per week shall be paid to the plaintiff or plaintiff’s attorneys by the defendant on or before the noon of Saturday of each week, commencing on Saturday, February 29th, and until the referee shall make his report.

“ That the further sum of two hundred and fifty dollars, back alimony, be paid by defendant to plaintiff or plaintiff’s counsel on or before the 29th day of February, 1896, which sum when paid shall be in full for all alimony "to which the-plaintiff shall be entitled up to- the 22d day "of February, 1896. 1

“ That two hundred and fifty dollars be paid as a- counsel fee by defendant to plaintiff’s attorneys- on or before the 7th day of March, 1896. ' .

“That if the plaintiff refuses to consent to a reference as-above ordered by serving on or before February-24, 1896, á consent in writing upon the attorney for the defendant, no alimony or counsel fee shall be allowed and her motion will be denied. : •

“ If the plaintiff shall consent as above provided and the defendant shall not on or before the 29th day of February, 1896, consent to a reference as above ordered, then the amount to be paid by him as above ordered shall in each case be • double the amount- above mentioned.

“If there be an order of reference herein that the said reference proceed on two days’ notice by either party to the other and continue from day to day until completed, unless the referee shall otherwise order.” - •

It is not necessary to rehearse the testimony in this case. After having read it we are satisfied that if this order had confined itself simply to awarding to Mrs. Patterson the amount of alimony and counsel fee which'was fixed by the court, no- fault could have-been found with it. - - ......... v-\ - -........

The question simply is whether those provisions of the order’cited’ above are proper so far" at'they take away the alihdony" from-the plaintiff if . she refuses to consent to a reference, or increase the amount of it in case the defendant refuses to consent. The order for alimony and counsel fees in matrimonial actions is discretionary,,, but like all discretionary orders it is reviewable by the Appellate Division. In cases of this kind, if there has been a palpable abuse of the discretion of the court, or if the court seems to have been controlled by improper considerations in making the order, there is no doubt of the power of this court to review its action upon appeal. (Lowenthal v. Lowenthal, 68 Hun, 366.) That condition, of affairs clearly exists here. In making allowances of this kind to the wife they should be such only as are necessary tó enable her to carry on the action or for her support, having regard to the circumstances of the respective parties. (Code Civ. Proc. § 1769.) In fixing the amount of alimony the court should take into considera-, tion the nature of the action; whether or not the wife has a good. cause of action; the probable difficulty of proving her case, and the strength of the case she is likely to be required to meet and the probable expense of carrying on the litigation. In coming to a conclusion as to the amount of alimony, the station in life of the husband, his rúeans as shown by the testimony, including his expenditures, and his apparent condition, should be the criterion as to the proper amount necessary to give the wife suitable support, it being remembered that such suitable support is not simply what will supply her. with the bare necessaries of life, but such a sum as will keep her in the situation and condition in which her husband’s means entitle her to live. When those questions are answered and the amount necessary to pay such expenses' is ascertained, the. amount of the allowance ceases to be entirely a question of discretion, but should be made commensurate with those needs. But the. wife, while she should have so great an amount as is necessary to pay those expenses if the husband’s means will permit, is'not to. have more than that, and should have nothing awarded to her if she has means of her own sufficient to carry on the action and to support herself. (Collins v. Collins, 80 N. Y. 1.)

It may be that in actions for separation where a jury trial is not a matter of right, the court may, as a condition of awarding alimony, require the wife to consent to a reference, to the end that the rights of the parties may be quickly determined and the amount of permanent alimony to be paid, if the wife is entitled to it, may be ascertained. But alimony or counsel fees sliould never be given to a wife for the mere purpose of punishing the defendant, the husband, either because he refuses to consent to the taking of any step in the action, or because he has shown by the proceedings in the action that he is an unworthy person. It is quite likely in this case that each of these reasons may have moved the court to double the amount of alimony and counsel fee in case the defendant refused to consent to a reference, but that action was entirely unwarranted. While the speedy disposition of these actions is always to be < lesired, yet ordinarily parties should not be compelled to consent to a reference. The court, not content with awarding alimony and counsel fees to the wife, directed that if the husband did not consent to refer the case, doiible the amount which had been fixed by it as a sufficient alimony and counsel fee, should be paid. This action of the court, we think, was error.- The case made by the plaintiff was such as to entitle her to alimony and counsel fee, and there was no case which would authorize the court to require her to consent to a reference as a condition of obtaining it, and certainly nothing to require the defendant to pay double the amount which was necessary to support his wife and enable her to carry on the action if he did not consent to refer the case.

For these reasons so much of the order as denies alimony or counsel fee to the plaintiff if she refuses to consent to a reference, and so much of the order as doubles the counsel fee and alimony if the defendant refuses to consent to a reference, and so much of the order as requires that the reference- should proceed upon two days’ notice and continue from day to day until completed, is reversed. But the second, third and fourth subdivisions of the order which award alimony and counsel fee to the plaintiff at the sums therein fixed, are affirmed, and thus modified, the order is affirmed, without costs.

Van Brunt, P. J., Barrett, Williams and Patterson, JJ., concurred.

Order modified as directed in opinion, and as so modified affirmed, without costs. '