Orenstein v. Orenstein

parties were married December 12, 1961. Each had been married previous], the wife twice and the husband once. The separation occurred June, 1965. There is no issue. Defendant, prior to his marriage with the plaintiff, maintained a bachelor apartment for about 20 years. Plaintiff moved into defendant’s furnished and rent controlled apartment. The apartment rent, originally $308 monthly, was increased in stages to $358. Following decontrol, the apartment rent was increased to $750. Thereupon defendant arranged for an apartment on a lower floor at $418 monthly. Defendant admits annual living expenses of about $20,000 which he particularizes as follows: Plaintiff received weekly for out-of-pocket expenses $30; hotel charges of $400 monthly for food, drugs, laundry and other items; $50 weekly restaurant expenses; annually, $1,000 for clothing, $435 life insurance premiums, $400 medical expenses and $800 automobile expenses. During the marriage the parties had a single extended vacation of 10 days in Miami, Florida, at the house of a friend of defendant. Defendant discontinued his brokerage business during 1962. His testimony is that his annual income in and after 1963 did not exceed $15,000. The standard of living during the latter years of the marriage would appear to have been dependent in part on defendant’s capital. In the absence of special circumstances, not relied on here, a former matrimonial standard of living based on capital expenditures is not a proper basis for permanent alimony. (Winkler v. Winkler, 25 Misc 2d 938 , 940, affd. 13 A D 2d 924 , affd. 11 N Y 2d 693 ; Hearst v. Hearst, 3 A D 2d 706 .) We reduced as excessive an award of temporary alimony in this case ( 24 A D 2d 753 ) from $175 per week, plus $350 rent per month, to the sum of $150 per week. We stated then that the amount awarded for temporary alimony was excessive and not supported by the record. Similarly, the instant award does not And support in the record. Plaintiff’s uncorroborated generalities, entirely eonelusory in nature, fail to meet the defendant’s specific evidence despite ample opportunity afforded the plaintiff to rebut defendant’s allegations and proof on the trial and on the application for temporary alimony. In addition, the award of alimony should be made in the light of defendant’s need to maintain separate living quarters. (Pournaras v. Pournaras, 25 A D 2d 635 .) The grounds for separation were not contested, the issues as to support were not complicated and the trial was brief. In the circumstances, the award of alimony and counsel fees beyond the sums herein provided was excessive. Concur — McNally, Steuer and Capozzoli, JJ.; Breitel, J. P., and Stevens, J., dissent in the following memorandum by Breitel, J. P.: I dissent and vote to affirm. Defendant husband did not contest plaintiff wife’s right to a separation based on a series of brutal physical beatings, some in public places. Only the amount of support of this childless marriage of over three years is in issue. The wife testified that following the honeymoon in Mexico, the parties occupied an apartment at Central Park South in Manhattan at a rental of $360 per month, and that the husband had furnished it with $40,000 worth of antiques, always paying cash for his purchases. While she was allowed to have many charge accounts at leading shops, her husband always urged her to use cash. He gave her $100 to $200 per week in cash for spending; later in her testimony she limited the pocket allowance to $100 per week. She was provided with fur coats and various items of expensive jewelry during the marriage. All other household expenses were paid by the husband on a monthly basis. He, a heavy drinker, told her that the liquor bill was $600 per month. They operated a current model automobile and planned, for a time, to purchase a co-operative apartment for $30,000. She fixed the weekly expenditures, about which she was frankly uncertain, at $800 to $1,000. The wife testified that she signed an income tax return for $20,000 about which the husband explained that he tried to do the best