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Petitoner Contends Respondant has No Need for Spousal Support


A New York Family Lawyer said an objection to an order was filed with the court and a rebuttal to the objection was received from the county attorney.

The complainant objects to the order of the hearing examiner, arguing that the determination that the complainant does not have a need for support is not supported by the evidence in the record and is contrary to the prevailing law.

A New York Custody Lawyer said that subsequently, both parties provided the court with memoranda of law.

The matter started when a petition seeking spousal support was filed with the court. The complainant sought an order of support and an order directing the opponent to re-budget the health Medicaid of the opponent to allow the complainant sufficient needs from the opponent’s income to meet her living expenses and to bring the opponent’s account at one institution.

The complainant, who is 70 years of age, seeks support from her husband, also age 70, who currently resides in a nursing home. The complainant asserted that her current income was $207.50 a month from her social security check and the interest earned from a savings account. She also stated that her needs exceed $1,200.00 a month. She asserts that her husband’s monthly income is $98.50 from social security and $1,800.90 from a pension.

A Bronx Family Lawyer said that at the time where the hearing first came, the attorney was assigned to represent the opponent and the matter was adjourned so that pretrial motions and discovery procedures could be completed. Subsequently, the matter was twice more postponed. A hearing extending over a two day period was held and the hearing examiner reserved decision.

Sources revealed that the hearing examiner made the following findings of fact that the reasonable needs of the complainant are $925.44 a month, the needs of the opponent are $77.84 per day, his needs being the cost of his care in a nursing home, the complainant has an income of $205.50 per month from social security and interest, the complainant has bank accounts with balances amounting to more than $47,000.00 and the opponent’s monthly income is $98.50 from social security and $1,800.90 from a pension.

A Bronx Custody Lawyer said the hearing examiner also stated that the principle in the complainant’s bank accounts could meet her needs for over four years. As a result, the hearing examiner denied the complainant’s request for an order of support. Further, the hearing examiner found that the family court does not have the authority to review the budgeting of the complainant’s income for medical purposes.

The examiner then dismissed the petition with prejudice. The complainant’s attorney’s request for counsel fees was denied.

The complainant’s attorney argues that she is entitled to be maintained in the same lifestyle she had prior to her husband’s illness. The complainant further cites previous case in which the court was affirmed without opinion by the appellate division. In the said case, a wife with an inheritance of approximately $25,000 was allowed to keep that asset. The court found that her right to have dignity and pride as she approaches her seventy-seventh year more than offsets the public right to repayment for services provided to her husband.

Based on records, the party’s marital home was transferred to the couple’s children without consideration. The attorney also notes that while a home is exempt for purposes of establishing eligibility for medical purposes, the commissioner may have the right to recover the costs for Medicaid expended against the marital home.

The attorney further expresses concern that the transfer of the marital home may result in defeating the right of the commissioner to recover the costs of Medicaid against the parties’ estate.

The counsel was then appointed for the opponent spouse. No case was made, however, on the opponent’s behalf.

The matter then raises the spectre of a desolate old age where the condition of one’s health and finances wane and problems for family members loom as impossible. The universal underlying fear emotionally clouds the consideration of the legal issues before the court.

Sources revealed that social services law concerns the eligibility of certain persons for medical assistance. The responsibility for determining eligibility for medical assistance is clearly allocated by law to the department of social services, and to other state departments.

Certainly, the department has specific responsibility in establishing by regulation reasonable standards, which shall be comparable for all groups, for determining eligibility consistent with the provisions of the law and the rules of the board.

Consequently, the hearing examiner was correct in finding that the family court does not have the authority to review the budgeting of the complainant’s income for medical purposes.

The court stated that such review must be sought through administrative review procedures within the department of social services. The objection of the complainant to the finding of the hearing examiner that the family court had no authority is denied in all respects.

The court stated that the hearing examiner has no authority to review the administrative determinations of the commissioner of social services and the attorney has no further interest in the case. As a result, the court finds that the question of spousal support involves only the complainant and the opponent. Moreover, the commissioner is not a party to the said determination.

The hearing examiner found that the family court has the authority to make an order of a fair and reasonable sum for the support of one spouse by the other, having due regard to the conditions of the respective parties.

In this case, the opponent put in no case as to his ability or lack of ability to meet the reasonable financial needs of his spouse. There is a legal presumption in the act that the opponent is presumed to have sufficient means to support his or her spouse. The said presumption was not overcome. The opponent on his own behalf submitted no evidence of any lack of financial ability. As a result, the court finds that the opponent in this case has the financial ability to provide for the needs of his spouse.

Unlike with other related case relied upon by the complainant, the well spouse is not in the position of attempting to shield her estates from the commissioner’s attempt to collect support from her for the benefit of her institutionalized spouse. Nor is there any evidence, as there was in the previous case that the complainant has expended large amounts of her financial resources on the care and support of her husband thus jeopardizes her own financial situation. Therefore, the previous related case is distinguishable from the case.

While the court has found that the complainant is entitled to receive child support from the opponent to meet her reasonable needs and that the opponent has the ability to meet those needs, the court finds that the approximately $47,000.00 in financial resources currently in the complainant’s control are adequate to meet her present needs.

Under the circumstances of the case the complainant should not be penalized because her spouse is in a nursing home. Nor should she be awarded with extra support because he is in a nursing home.

Based on the facts, the court finds no error in the determination made by the hearing examiner. As a result, the objections to the order of the hearing examiner are denied.

When you and your spouse need legal guidance on your marital relationship, you can seek assistance from the Nassau County Family Lawyer or Nassau County Divorce Attorney. On the other hand, if you need help on the issue of your child’s guardianship, you can hire the Nassau County Child Custody Attorney at Stephen Bilkis and Associates.

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