Opinion
January 5, 1981
In a matrimonial action, the defendant husband appeals, as limited by his brief, from so much of a judgment of divorce of the Supreme Court, Suffolk County entered September 28, 1979, as ordered him to pay alimony of $35 per week and a counsel fee of $925. Judgment modified, on the law, by deleting the second decretal paragraph thereof and substituting therefor a provision denying plaintiff's application for alimony. As so modified, judgment affirmed insofar as appealed from, without costs or disbursements. This case involves a childless second marriage entered into by the parties in 1962. The record reveals that the respondent wife, 78 years old, had, prior to this litigation, in excess of $50,000 in savings accounts; that she transferred $14,000 to various relatives during the course of this litigation; that she has, inter alia, in excess of $6,000 in securities; that she has a half interest in the marital home which, appellant claims, and respondent does not deny, has since the judgment been sold for $45,000; and that she receives $288 a month from Social Security. Respondent claims expenses totaling about $180 per week. The record further reveals that the appellant husband, 82 years old, has about $3,300 in savings; that he, during the course of the litigation and after suffering a heart attack, transferred about $14,000 to his son; that he receives $425 per month from Social Security and nets about $374 per month from part-time employment at OTB; and that he too has a one-half interest in the marital home. Our calculations indicate that respondent's income from Social Security plus a reasonable yield on her assets should more than cover her claimed expenses. In view of all the circumstances of this case, including the age, income, resources and expenses of the respective parties, we believe Special Term abused its discretion in awarding alimony to the respondent (see Kover v. Kover, 29 N.Y.2d 408). Hopkins, J.P., Titone, Mangano and Rabin, JJ., concur.